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THE JOURNAL OF THE FEDERAL CONVENTION OF 
1787 Analyzed ; the Acts and Proceedings thereof Com- 
pared; AND THEIR PRECEDENTS CiTED : IN EVIDENCE OF 

THE Making of the Constitution for Interpretation or 
Construction in the ALTERNATIVE, according to either 
the Federal Plan or the National Plan : That by the 
LATTER CONGRESS HAVE GENERAL POWER to Provide 
FOR THE Common Defense and General Welfare of the 
United States; DIRECT TAXES are Taxes Direct TO 
THE SEVERAL STATES, in Contrast with Duties extend- 
ing THROUGHOUT THE UNITED StATES, WHICH ARE INDIRECT 

Taxes to the Several States ; and the LIMITS OF THE 
UNION ARE coextensive with the Bounds of AMERICA. 



BY 

Hamilton P. Richardson, Esq. 



or THE WISCONSIN BAR. 



SAN FRANCISCO: 
THE MURDOCK PRESS. 

1899 



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45247 



Copyright 

1899 

By Hamilton P. Richardson, Esq. 



TWO COPIES RECEIVED. 




aPY, 






INDKX. 



PAGE. 



J Introductory — from the Journal 5 

PAET I. 

The Purpose 8 

Articles of Confederation and Perpetual Union 10 

Resolutions called the Virginia Plan 18 

Resolutions of the Convention in Committee of the 

Whole House 21 

Resolutions called the Jersey Plan 24 

Resolutions of the Convention in Convention 27 

THE CONSTITUTION IN BLOCK. 

From the Beginning Through the Legislative Power 31 

Rules of Representation and Direct Taxation, and 

the Meaning of Direct Taxes 59 

Through the Constitution in Block 89 

The Jersey Plan, and Interpretation in the Alternative 107 

PAET II. 

The Purpose 119 

The Pinckney Draft 120 

The Rough Draft of the Constitution from Committee 
of Detail 126 

THE CONSTITUTION IN DETAIL. 

Consideration of the Rough Draft 135 

The Revised Draft from. Committee of Revision of 

Style and Arrangement 159 

From the Rough Draft to the Revised Draft 169 

From the Revised Draft to the Signing of the Con- 
stitution 198 

From September 1774 through September 1787. . . . 201 

Of the Interpretation 213 

The Power of Congress 214 

Direct Taxes 218 

Limits of the Union 2:^4 

Of the Power of Interpretation 225 

In Conclusion 233 

The Constitution 234 



INTRODUCTOKY. 



From the Journal, Acts and Proceedings of the 
Convention assembled at Philadelphia, Monday, May 
14, and dissolved Monday, September 17, 1787, which 
formed the Constitution of the United States; pub- 
lished under the direction of the President of the 
United States, conformably to a resolution of Con- 
gress of March 27, 1818; published 1819, Boston, 
Thomas B. Wait ; reprinted in Elliot's Debates, Vol- 
ume I, J. B. Lippincott Co.'s Edition, 1896. 

" ADVERTISEMENT. 

" The following resolution of the old Congress, adopted on 
the 21st of February, 1787, contains the authority by which 
the Convention, which formed the constitution was convoked : 
Whereas there is provision of the articles of confederation and 
perpetual union for making alterations therein by the assent 
of the congress of the United States, and of the legislatures of 
the several states; and whereas experience hath evinced that 
there are defects in the present confederation, as a mean to 
remedy which several of the states and partieidarly the state 
of jSTew York by express instructions to their delegates in Con- 
gress, have suggested a Convention for the purposes expressed 
in the following resolution ; and such convention appearing to 
be the most probable mean of establishing in these states a 
firm national government, 

" ' Besolvcd, That in the opinion of Congress it is expedient 
that on the second Monday in May next a convention of dele- 
gates who shall have been appointed by the several states be 
held at Philadelphia for the sole and express purpose of revis- 
ing the articles of confederation and reporting to congress and 
the several legislatures such alterations and provisions therein 
as shall, when agreed to in Congress and confirmed bv the sev- 



( 6 ) 

eral states render the federal constitution adequate to the ex- 
igencies of government and tlie preservation of the Union. 

" The da.y appointed by this resokition for tlie meeting of 
the convention was the second Monday in May, 1787, but the 
25th of that month was the first day upon which a sufficient 
number of members appeared to constitute a representation 
of a majority of the states. They then elected George Wash- 
ington their president, and proceeded to business, at the city 
of Philadelphia. 

" On the 29th of May, Mr. Edmund Eandolph presented to 
the convention fifteen resolutions, and Mr. C. Pinckney laid 
before them the draft of a federal government, which were re- 
ferred to a committee of the whole; which debated the reso- 
lutions from day to day until the 13th of June, when the 
committee of the whole reported to the Convention a series 
of nineteen resolutions, founded upon those which had been 
proposed by Mr. Eandolph. On the 15th of June, Mr. Patter- 
son submitted to the Convention his resolutions, which were 
referred to a committee of the whole, to whom were also 
recommitted the resolutions reported by them on the 13 th. 
On the 19th of June, the committee of the whole reported that 
they did not agree to Mr. Patterson's propositions, but report- 
ed again the resolutions which had been reported before. 

" The Convention never afterwards went into committee of 
the whole; but from the 19th of June till the 23d of July, 
were employed in debating the nineteen resolutions reported 
by the committee of the whole on the 13th of June, some of 
which were occasionally referred to grand committees of one 
member from each state, or to select committees of five mem- 
bers. After passing upon the nineteen resolutions, it was on 
the 23d of July resolved, ' That the proceedings of the Con- 
vention for the establishment of a national government, ex- 
cept Avhat respects the supreme executive, be referred to a 
committee for the purpose of reporting a constitution con- 
formably to the proceedings aforesaid.' This committee, 
consisting of five members, and called in the Journal, " the 
committee of detail," was appointed on the 24th of July, and, 
with the proceedings of the Convention, the propositions sub- 
mitted to the Convention by Mr. Charles Pinckney on the 
29 th of May, and by Mr. Patterson on the 15th of June, were 
referred to them. On the 26th of July, a resolution respect- 
ing the executive and two others, offered for the consideration 
of the Convention, were referred to the committee of detail; 
and the Convention adjourned till Monday the 6th of August, 
when the committee reported a Constitution for the estab- 
lishment of a national government. 



( 7 ) 

" This draft formed the general text of debate from thac 
time till the 8th of September; many additional resolu- 
tions being in the course of the deliberations proposed, and 
referred to and reported upon b}^ the same committee of de- 
tail, or other committees of eleven, (a member from each 
state,) or of five. On the 8th of September, a committee of 
five was appointed 'to revise the style of and arrange the 
articles agreed to by the house/ On the 12th of September, 
this committee reported the Constitution, as revised and 
arranged, and the draft of a letter to Congress. It was or- 
dered that printed copies of the reported Constitution should 
be furnished to the members and they were brought in the 
next day. 

" On the 17th day of September, 1787, the Convention dis- 
solved itself, by an adjournment without day, after trans- 
mitting the plan of the Constitution, which they had 
prepared, to Congress, to be laid before conventions, delegated 
by the people of the several states, for their assent and rati- 
fication. 

The last act of the Convention was a resolution that their 
journal and other papers should be deposited with their presi- 
dent, to be retained by him, subject to the order of the Con- 
gress, if ever formed under the Constitution. 

"In order to follow with clear understanding the course 
of the proceedings of the Convention, particular attention is 
required to the following papers, which, except the third, suc- 
cessively formed the general text of their debates : — 

" 1. May 29, 3 787. The Fifteen Eesolutions ofllered by Mr. 
Edmund Eandolph to the Convention, and by them referred 
to a committee of the whole. 

" 2. June 13. Nineteen Resolutions reported by this com- 
mittee of the whole, on the 13th, and again on the 19th of 
June, to the Convention. 

" 3. July 26. Twenty-three Eesolutions, adopted and elab- 
orated by the Convention, in debate upon the above nineteen, 
reported from the committee of the whole; and on the 23d 
and 26th of July, referred, together with the plan of Mr. C. 
Pinckney, and the propositions of Mr. Patterson to a com- 
mittee of five, to report a draft of a Constitution. 

"4. August 6. The Draft of a Plan of a Constitution, 
reported by this committee to the Convention, and debated 
from that time till the 12th of September. 

" 5. September 13. Plan of a Constitution, brought in by a 
committee of revision appointed on the 8th of September, 



Vs 



( 8 ) 

consisting of five members, to revise the style of and arrange 
the articles agreed to by the Convention. 

" The second and fourth of these papers are among those 
deposited by President Washington, at the department of 
State.i 

" The first, fourth, and fifth, are among those transmitted 
b}^ General Bloomfield.^ 

'• The third is collected from the proceedings of the Con- 
vention, as they are spread over the Journal from June 19th 
to July 26th. 

" This paper, together with the plan of Mr. C. Pinckney, a 
copy of vs^hich has been furnished by him, and the proposi- 
tions of Mr. Patterson, included among the papers forwarded 
by General Bloomfield, comprise the materials upon which the 
first draft was made of the Constitution, as reported by the 
committee of detail, on the 6th of August." 



PART I. 



THE PUEPOSE. 

It is designed here to present an analysis and com- 
parison of the afore-mentioned papers — that is to say, 
the resolutions offered by Mr. Randolph of Virginia, 
May 29, which were commonly called in the conven- 
tion the Virginia plan of government, the resolu- 
tions of the convention reported from the committee 
of the whole house twice, first on June 13, and 
again (after rejection of the Jersey plan) on June 
19, the resolutions of the convention sitting in 
convention, referred on July 23 — 26 to a com- 
mittee of detail to draft a Constitution, the rough 
draft of the Constitution reported from the com- 
mittee of detail August 6, and the revised and ar- 

1 In 1796. 

2 General Bloomfield was the executor of Duvid Brearly, one of the mem- 
bers of the Convention. 



( 9 ) 

ranged draft also reported from committee appointed 
to revise the style of and arrange the articles agreed 
to by the house, September 12 ; also the resolutions 
offered by Mr. Patterson of New Jersey, June 15, 
which were commonly called in the convention the 
Jersey plan of government, and the draft of a govern- 
ment offered to the convention by Mr. Charles 
Pinckney, May 29. It is intended to notice the like- 
nesses and differences of these papers and to set forth 
the sources and precedents of the respective ijro- 
ceedings, resolutions and clauses, articles and sections 
therein contained, whereby their meaning may be 
more clear. For this purpose all the papers are di- 
vided into two sets, those which were under consider- 
ation by the convention prior to July 26, when the 
resolutions finally adopted by the convention were 
referred to the committee of detail to draft a Constitu- 
tion conformable to those resolutions, and those un- 
der consideration subsequent to August 6, when the 
committee of detail made their report; that is to 
say, the papers are divided into those which present 
the constitution in block or in mass, as it were, and 
those which present it in detail. The first set, being 
(I) the Virginia plan of government, (2) the resolu- 
tions reported by the committee of the whole house 
on June 13 and again on June 19, (3) the Jersey plan 
of government, (4) the resolutions of the convention 
sitting in convention, are here set out from the Jour- 
nal. They will be compared throughout by first com- 
paring the Virginia plan, the resolutions reported 
from the committee of the whole and the resolutions 
of the convention in convention ; and then comparing 
the latter, that is the resolutions finally adopted by 
the convention, with the Jersey plan, which was re- 
jected by the convention. For reference throughout, 
the Articles of Confederation and Perpetual Union 
are set out first. 



ARTICLES OF CONFEDERATION AND PERPETUAL UNION. 

Whereas the delegates of the United States of America, 
in Congress assembled, did, on the fifteenth da}"" of ISTovember, 
in the year of our Lord one thoiisand seven hundred and 
seventy-seven, and in the second year of the Independence of 
America, agree to certain Articles of Confederation and Per- 
petual Union, between the states of ISTew Hampshire, Massa- 
chusetts Ba}^, Ehode Island and Providence Plantations, 
Connecticut, New York, ISTew Jerse}^, Pennsylvania, Delaware, 
Maryland, Virginia, North Carolina, South Carolina, and 
Georgia, in the words following, viz : — 

Articles of Confederation and Perpetual Union, betiveen the 
States of New Hampshire, Massachusetts Bay, Rhode Island, 
and Providence Plantations, Connecticut, New York, New 
Jersey. Pennsylvania, Delaware, Maryland, Virginia, North 
Carolina, South Carolina, and Georgia. 

Aeticle 1. The style of this confederacy shall be, ' The 
Qnited States of America.' 

Art. 2. Each state retains its sovereignty, freedom, and 
independence, and every power, jurisdiction, and right, which 
is not by this Confederation, expressly delegated to the United 
States in Congress assembled. 

Art. 3. The said states hereby severally enter into a firm 
league of friendship with each other for their common de- 
fence, the security of their liberties, and their mutual and 
general welfare; binding themselves to assist each other 
against all force offered to, or attacks made u.pon them, or 
any of them, on account of religion, sovereignty, trade, or any 
other pretence whatever. 

Art. 4. The better to secure an^ perpetuate mutual 
friendship and intercourse among the people of the different 
states in this Union, the free inhabitants of each of these 
states — paupers, vagabonds, and fugitives from Justice ex- 
cepted — shall be entitled to all privileges and immunities of 
free citizens in the several states; and the people of each 
state shall have free ingress and regress to and from any other 
state, and shall enjoy therein all the privileges of trade and 
commerce, subject to the same duties, impositions, and restric- 
tions, as the inhabitants thereof, respectively, provided that 
such restrictions shall not extend so far as to prevent the re- 
moval of property imported into any state from any other 
other state, of which the owner is an inhabitant; provided 
also, that no imposition, duty, or restriction, shall be laid 



( 11 ) 

by any state on the property of the United States, or either 
of them. 

If any person, guilty of, or charged with, treason, felony, 
or other high misdemeanor, in any state, shall flee from jus- 
tice, and be found in any of the United States, he shall, upon 
demand of the governor or executive power of the state from 
which he fled, be delivered up, and removed to the state hav- 
ing jurisdiction of his oft'ence. 

Full faith and credit shall be given, in each of these states, 
to the records, acts, and judicial proceedings, of the courts 
and magistrates of every other state. 

Art. 5. For the more convenient management of the gen- 
eral interests of the United States, delegates shall be annually 
appointed in such manner as the legislature of each state shali 
direct, to meet in Congress on the first Monday in IsTovember, 
in every 3''ear, with a power reserved to each state, to recall its 
delegates, or any of them, at any time within the year, and 
to send others in their stead for the remainder of the year. 

J^o state shall be represented in Congress by less than two, 
nor by more than seven members; and no person shall be 
capable of being a delegate for more than three years in any 
term of six years; nor shall any person, being a delegate, be 
capable of holding any office under the Undted States, for 
which he, or another for his benefit, receives any salary, fees, 
or emolument of any kind. 

Each state shall maintain its own delegates in a meeting 
of the states, and while they act as members of the committee 
of the states. 

In determining questions in the United States in Congress 
assembled, each state shall have one vote. 

Freedom of speech and debate in Congress shall not be im- 
peached or questioned in any court or place out of Congress ; 
and the members of Congress shall be protected in their per- 
sons from arrests and imprisonments, during the time of their 
going to and from, tod attendance on. Congress, except for 
treason, felony, or breach of the peace. 

Art. 6. No state, without the consent of the United 
States in Congress assembled, shall send any embassy to, or 
receive any embassy from, or enter into any conference, agree- 
ment, alliance, or treaty, Avith any king, prince, or state ; nor 
shall any person holding any office of profit or trust under the 
United States, or any of them, accept of any present, emolu- 
ment, oflice, or title, of any kind whatever, from any king, 
prince, or foreign state; nor shall the United States in Con- 
gress assembled, or any of them, grant any title of nobility. 

No two or 'more states shall enter into any treaty, confed- 
eration, or alliance whatever between them, without the con- 



( 12 ) 

sent of the United States in Congress assembled, specifying 
aecnrately the purposes for which the same is to be entered 
into, and how long it shall continue. 

No state shall lay any imposts or duties, which may inter- 
fere with any stipulations in treaties entered into, by the 
United States in Congress assembled, with any king, prince, 
or state, in pursuance of any treaties already proposed by 
Congress to the courts of France and Spain. 

iSTo vessel of war shall be kept up in time of peace by any 
state, except such number only as shall be deemed necessary, 
by the United States in Congress assembled, for the defence of 
such state, or its trade ; nor shall any body of forces be kept 
up by any state, in time of peace, except such number only 
as, in the judgment of the United States in Congress assem- 
bled, shall be deemed requisite to garrison the forts necessary 
for the defence of such state; but every state shall always 
keep up a well-regulated and disciplined militia, sufficiently 
armed and accoutred and shall provide, and have constantly 
ready for use, in public stores, a due number of field-pieces and 
tents, and a proper quantity of arms, ammunition, and camp 
equipage. 

No state shall engage in any war without the consent of the 
United States in Congress assembled, unless such state be 
actually invaded by enemies, or shall have received certain ad- 
vice of a resolution being formed b}'' some nation of Indians 
to invade such state, and the danger is so imminent as not to 
admit of a delay till the United States in Congress assembled 
can be consulted; nor shall any state grant commissions to 
any ships or vessels of war, nor letters of marque or reprisal^ 
except it be after a declaration of war by the United States in 
Congress assembled, and then only against the kingdom or 
state, and the subjects thereof, against which war has been so 
declared, and under such regulations as shall be established hy 
the United States in Congress assembled, unless such state be 
infested by pirates ; in which case, vessels of war may be fitted 
out for that occasion, and kept so long as the danger shall con- 
tinue, or until the United States in Congress assembled shall 
determine otherwise. 

Art. 7. When land forces are raised by any state for the 
common defence, all officers of or under the rank of colonel 
shall be appointed by the legislature of each state, respec- 
tively, by whom such forces shall be raised, or in such manner 
as such state shall direct ; and all vacancies shall be filled up 
by the state which first made the appointment. 

Art. 8. All charges of war, and all other expenses that 
shall be incurred for the common defence or general welfare. 



( 13 ) 

and allowed by the United States in Congress assembled, shall 
be defrayed ont of a common treasury, which shall be supplied 
by the several states, in proportion to the value of all land, 
within each state, granted to or surveyed for any person, as 
such land, and the buildings and improvements thereon, shall 
be estimated, according to such mode as the United States in 
Congress assembled shall, from time to time, direct and ap- 
point. 

The taxes for paying that proportion shall be laid and levied 
by the authority and direction of the legislatures of the sev- 
eral states, within the time agreed upon by the United States 
in Congress assembled. 

Art. 9. The United States in Congress assembled shall 
have the sole and exclusive right and power of determining 
on peace and war, except in the cases mentioned in the sixth 
article^ — of sending and receiving ambassadors — entering into 
treaties and alliances; provided that no treaty of commerce 
shall be made whereby the legislative power of the respective 
states shall be restrained from imposing such imposts and 
duties on foreigners as their own people are subjected to, or 
from prohibiting the exportation or importation of any species 
of goods or commodities whatsoever — of establishing rules for 
decidijig, in all cases, what captures, on land or water, shall 
be legal, and in what manner prizes taken by land or naval 
forces in the service of the United States shall be divided or 
appropriated — of granting letters of marque and reprisal in 
times of peace — appointing courts for the trial of piracies, 
and felonies committed on the high seas, and establishing 
courts for receiving and determining finally appeals m ail 
cases of capture; provided that no member of Congress shall 
be appointed a judge of any of the said courts. 

The United States in Congress assembled shall also be the 
last resort on appeal in all disputes and differences now sub- 
sisting, or that hereafter may arise, between two or more 
states, concerning boundar}'', jurisdiction, or any other cause 
whatever; which authority shall always be exercised in the 
manner following: Whenever the legislative or executive 
authority, or lawful agent, of any state in controversy with 
another, shall present a petition to Congress, stating the mat- 
ter in question, and pra3dng for a hearing, notice thereof shall 
be given by order of Congress to the legislative or executive 
authority of the other state in controversy, and a day assigned 
for the appearances of the parties, by their lawful agents, — 
who shall then be directed to appoint, by joint consent, com- 
missioners or judges to constitute a court for hearing and 
determining the matter in question ; but if they cannot agree, 



( 14 ) 

Congress shall name three persons out of each of the United 
States, and from the list of such persons each party shall al- 
ternately strike out one, the petitioners beginning, until the 
number shall be reduced to thirteen; and from that number 
not less than seven nor more than nine names, as Congress 
shall direct, shall, in the presence of Congress, be drawn out 
by lot; and the persons whose names shall be so drawn, or 
any five of them, shall be commissioners or judges, to hear 
and finally determine the controversy, so always as a major 
part of the judges, who shall hear the cause, shall agree in the 
determination ; and if either party shall neglect to attend at 
the day appointed, without showing reasons which Congress 
shall judge sufficient, or being present shall refuse to strike, 
the Congress shall proceed to nominate three persons out of 
each state, and the secretary of Congress shall strike in be- 
half of such party absent or refusing ; and the judgment and 
sentence of the court, to be appointed in the manner before 
prescribed, shall be final and conclusive; and if any of the 
parties shall refuse to submit to the authority of such court, 
or to appear or defend their claim or cause, the court shall 
nevertheless proceed to pronounce sentence or judgment, 
which shall, in like manner, be final and decisive, — the judg- 
nient or sentence, and other proceedings, being in either case 
transmitted to Congress, and lodged among the acts of Con- 
gress for the security of the parties concerned ; provided that 
every commissioner, before he sits in judgment, shall take an 
oath, to be administered by one of the judges of the supreme 
or superior court of the state, where the cause shall be tried, 
' ' well and truly to hear and determine the matter in question, 
according to the best of his judgment, without favor, affection, 
or hope of reward:^'' provided, also, that no state shall be de- 
prived of territory for the benefit of the United States. 

All controversies concerning the private right of soil, 
claimed under different grants of two or more states, whose 
jurisdiction, as they may respect such lands, and the states 
which passed such grants, are adjusted, the said grants, or 
either of them, being at the same time claimed to have orig- 
inated antecedent to such settlement of jurisdiction, shall, 
on the petition of either party to the Congress of the United 
States, be finally determined, as near as may be, in the same 
manner as is before prescribed for deciding disputes respect- 
ing territorial jurisdiction between different states. 

The United States in Congress assembled shall also have 
the sole and exclusive right and power of regulating the alloy 
and value of coin struck by their own authority, or by that of 
the respective states; fixing the standard of weights and 



( 15 ) 

measures throughout the linited States; regulating the trade 
and managing all affairs Avith the Indians not members oi 
an}^ of the states, provided that the legislative right of nay 
state within its own limits be not infringed or violated ; estab- 
lishing and regulating post-offices from one state to another 
throughout all the United States, and exacting such postage 
on the papers passing through the same as may be requisite to 
defray the expenses of the said office; appointing all officers 
of the land forces in the service of the United States, except- 
ing regimental otlicers; appointing all the officers of the 
naval forces, and commissioning all officers whatever in the 
service of the United States ; making rules for the government 
and regulation of the said land and naval forces, and direct- 
ing their operations. 

The United States in Congress assembled shall have author- 
ity to appoint a committee to sit in the recess of Congress, to 
be denominated " a committee of the states," and to consist 
of one delegate from each state; and to appoint such other 
committees and civil officers as may be necessary for manag- 
ing the general affairs of the United States under their direc- 
tion — to appoint one of their number to preside, provided 
that no person be allowed to sei^ve in the office of president 
more than one year in any term of three years — to ascertain 
the necessary sums of money to be raised for the service of the 
United States, and to appropriate and apply the same for 
defraying the public expenses — to borrow money or emit bills 
on the credit of the United States, transmitting, every half 
year, to the respective states, an account of the sums of money 
so borrowed or emitted — to build and equip a navy — to agree 
upon the number of land forces, and to make requisitions 
from each state for its quota, in proportion to the number of 
white inhabitants in such state; which requisitions shall be 
binding ; and thereupon the legislature of each state shall ap- 
point the regimental officers, raise the men, and clothe, arm, 
and equip them in a soldier-like manner, at the expense of the 
United States; and the officers and men so clothed, armed, 
and equipped, shall march to the place appointed, and within 
the time agreed on by the United States in Congress assem- 
bled; but if the United States in Congress assembled shall, 
on consideration of circumstances, judge proper that any 
state should not raise men, or should raise a smaller number 
than its quota, and that any other state should raise a greater 
number of men than the quota thereof, such extra number 
shall be raised, officered, clothed, armed, and equipped, in the 
same manner, as the quota of such state, unless the legislature 
of such state shall judge that such extra number cannot be 



( IB ) 

safely spared out of the same ; in which case they shall raise, 
olficer, clothe, arm, and equip, as many of such extra number 
as they judge can be safely spared. And the ofTicers and men 
so clothed, armed, and equipped, shall march to the place ap- 
pointed, and within the time agreed on by the United States 
in Congress assembled. 

The United States in Congress assembled shall never en- 
gage in a war; nor grant letters of marqiie and reprisal in 
time of peace; nor enter into any treaties or alliances; nor 
coin money; not regulate the value thereof; nor ascertain 
the sums and expenses necessary for the defence and welfare 
of the United States, or any of them; nor emit bills; nor 
borrow money on the credit of the United States ; nor appro- 
priate money; nor agree upon the number of vessels of war 
to be built or purchased, or the number of land or sea forces 
to be raised; nor appoint a commander-in-chief of the army 
or navy, — unless nine states assent to the same; nor shall a 
question on any other point, except for adjourning from day 
to day, be determined, unless by the votes of a majority of the 
United States in Congress assembled. 

The Congress of the United States shall have power to ad- 
journ to any time within the year, and to any place within 
the United States, so that no period of adjournment be for a 
longer duration than the space of six months ; and shall pub- 
lish the journal of their proceedings monthly, except such 
parts thereof, relating to treaties, alliances, or military opera- 
tions, as in their judgment require secrecy ; and the yeas and 
nays of the delegates of each state on any question shall be 
entered on the journal, when it is desired by any delegate; and 
the delegates of a state, or any of them, at his or their request, 
shall be furnished with a transcript of the said journal, except 
such parts as are above excepted, to lay before the legislatures 
of the several states. 

Art. 10. The committee of the states, or any nine of 
them, shall be authorized to execute, in the recess of Congress, 
such of the powers of Congress as the United States in Con- 
gress assembled, by the consent of nine states, shall, from 
time to time, think expedient to vest them with; provided 
that no power be delegated to the said committee for the exer- 
cise of which, by the Articles of Confederation, the voice of 
nine states in the Congress of the United States assembled 
is requisite. 

xIrt. 11. Canada, acceding to this Confederation, and 
joining in the measures of the United States, shall be admitted 
into, and entitled to, all the advantages of this union ; but no 
other colony shall be admitted into the same unless such ad- 
mission be agreed to by nine states. 



( 17 ) 

Art. 12. All bills of credit emitted, moneys borrowed, and 
debts contracted, by or under the authority of Congress, 
before the assembling of the United States in pursuance of 
the present Confederation, shall be deemed and considered as 
a charge against the United States, for payment and satisfac- 
tion whereof the said United States, and the public faith, are 
hereby solemnly pledged. 

Art. 13. Every state shall abide by the determination of 
the United States in Congress assembled, on all questions 
which, by this Confederation, are submitted to them. And 
the articles of this Confederation shall be inviolably observed 
by every state, and the union shall be perpetual; nor shall 
any alteration, at any time hereafter, be made in any of them, 
unless such alteration be agreed to in a Congress of the United 
States, and be afterwards confirmed by the legislature of every 
state. 

RATIFICATION. 

And whereas it has pleased the Great Governor of the 
world to inchne the hearts of the legislatures we respectively 
represent in Congress, to approve of and to authorize us to 
ratify the said x4rticles of Confederation and Perpetual 
Union : Know ye, That we, the undersigned delegates, by vir- 
tue of the power and authority to us given for that purpose, 
do, by these presents, in the name and in behalf of our respec- 
tive constituents, fully and entirely ratify and confirm each 
and every of the said Articles of Confederation and Perpet- 
ual Union, and all and singular the matters and things there- 
in contained; and we do further solemnly plight and engage 
the faith of our respective constituents, that they shall abide 
by the determinations of the United States in Congress as- 
sembled, on all questions which, by the said Confederation, are 
submitted to them ; and that the articles thereof shall be in- 
violably observed by the states we respectively represent ; and 
that the union shall be perpetual. 

In witness whereof, we have hereunto set our hands, in Con- 
gress. Done^ at Philadelphia, in the state of Pennsyl- 
vania, the ninth day of July, in the year of our Lord one 
thousand seven hundred and seventy-eight, and in the 
third year of the Independence of America. 



RESOLUTIONS OFFERED BY MR, EDMUND RANDOLPH 
TO THE CONVENTION, MAY 29, 1787.^ 

" 1. Besolved, That the Articles of the Confederation ought 
to be so corrected and enlarged as to accomplish the objects 
proposed by their institution; namely, common defence, se- 
curity of liberty, and general welfare. 

'• 2. Resolved, therefore, That the right of suffrage, in the 
national legislature, ought to be proportioned to the quotas of 
contribution, or to the number of free inhabitants, as the one 
or the other may seem best, in different cases. 

" 3. Resolved, That the national legislature ought to con- 
sist of two branches. 

"4. 'Resolved, That the members of the first branch of 
national legislature ought to be elected by the people of the 
several states every , for the term of , to be 

of the age of years, at least; to receive liberal sti- 

pends, by which they may be compensated for the devotion of 
their time to the public service ; to be ineligible to any office 
established by a particular state, or under the authority of 
the United States, (except those peculiarly belonging to the 
functions of the first branch,) during the term of service and 
for the space of after its expiration; to be incapable 

of reelection for the space of after the expiration of 

their term of service ; and to be subject to recall. 

" 5. Resolved, That the members of the second branch of 
the national legislature ought to be elected by those of the 
first, out of a proper number of persons nominated by the indi- 
vidual legislatures, to be of the age of years, at least ; 
to hold their offices for a term sufficient to insure their inde- 
pendency; to receive liberal stipends, by which they may be 
compensated for the devotion of their time to the public ser- 
vice ; and to be ineligible to any office established by a partic- 
ular state or under the authority of the United States, (except 
those particularly belonging to the functions of the second 
branch,) during the term of service; and for the space of 
after the expiration thereof. 
" 6. Resolved, That each branch ought to possess the right 
of originating acts; that the national legislature ought to 
be empowered to enjoy the legislative right vested in Congress 
by the Confederation ; and, moreover, to legislate in all cases 
to which the separate states are incompetent, or in which the 
harmony of the United States may be interrupted by the exer- 
cise of individual legislation; to negative all laws passed by 

1 Paper furnished by General Bloomfield. 



( 19 ) 

the several states, contravening, in the opinion of the national 
legislature, the articles of union, or any treaty subsisting 
under the authority of the Union ; and to call forth the force 
of the Union against any member of the Union failing to 
fulfil its duty under the articles thereof. 

" 7. Resolved, That a national executive be instituted, to 
be chosen by the national legislature for the term of 
years, to receive punctually, at stated times, a fixed compen- 
sation for the services rendered, in which no increase or 
diminution shall be made, so as to affect the magistracy exist- 
ing at the time of the increase or diminution ; to be ineligible 
a second time; and that, besides a general authority to exe- 
cute the national laws, it ought to enjoy the executive rights 
vested in Congress by the Confederation. 

" S. Resolved, That the executive, and a convenient num- 
ber of the national judiciary, ought to compose a council of 
revision, with authority to examine every act of the national 
legislature, before it shall operate, and every act of a particu- 
lar legislature, before a negative thereon shall be final; and 
that the dissent of the said council shall amount to a rejection, 
unless the act of the national legislature be again passed, or 
that of a particular legislature be again negatived by of 

the members of each branch. 

" 9. Resolved, That a national judiciary be established 
to hold their offices during good behavior, and to 
receive punctually, at stated times, a fixed compensation for 
their services, in which no increase or diminution shall be 
made, so as to affect the persons actually in office at the time 
of such increase or diminution. That the jurisdiction of the 
inferior tribunals shall be to hear and determine in the first 
instance, and of the supreme tribunal to hear and determine 
in the dernier ressort, all piracies and felonies on the seas; 
captures from an enemy; cases in which foreigners, or citi- 
zens of other states, applying to such jurisdictions, may be 
interested, or which respect the collection of the national reve^ 
nue; impeachments of any national officer; and questions 
which involve the national peace or harmony. 

" 10. Resolved, That provision ought to be made for the 
admission of states, lawfully arising within the limits of the 
United States, whether from a voluntary junction of govern- 
ment or territory, or otherwise, with the consent of a number 
of joices in the national legislature less than the whole. 

"11. Resolved, That a republican government, and the 
territory of each state, (except in the instance of a voluntary 
junction of government and territory,) ought to be guaranteed 
hy the United States to each state. 



( 20 ) 

" 12. Resolved, That provision ought to be made for the 
continuance of Congress, and their authorities and privileges, 
until a given day, after the reform of the articles of union 
shall be adopted, and for the completion of all their engage- 
ments. 

" 13. Resolved, That provision ought to be made for the 
amendment of the articles of union, whensoever it shall seem 
necessary; and that the assent of the national legislature 
ought not to be required thereto. 

" 14. Resolved, That the legislative, executive, and judi- 
ciary powers within the several states ought to be bound by 
oath to support the articles of union. 

'•' 15. Resolved, That the amendments, which shall be 
offered to the Confederation by the Convention, ought, at a 
proper time or times, after the approbation of Congress, to be 
submitted to an assembly or assemblies of representatives, 
recommended by the several legislatures, to be expressly chosen 
by the people to consider and decide thereon. 

" 16. Resolved, That the house will to-morrow resolve 
itself into a committee of the whole house, to consider of the 
state of the American Union." 



STATE OF THE RESOLUTIONS SUBMITTED TO THE 

CONSIDERATION OF THE HOUSE BY 

THE HON. MR. RANDOLPH. 

AS ALTERED, AMENDED AND AGREED TO, IN COMMITTEE OF THE 
AVHOLE HOUSE. 

[Paper deposited by President Washington, in the Department of State.] 

" 1. Resolved, That it is the opinion of this committee 
that a national government ought to be established, consisting 
of a supreme legislative, judiciary and executive. 
_ " 3. Resolved, That the national legislature ought to con- 
sist of two branches. 

" 3. Resolved, That the members of the first branch of the 
national legislature ought to be elected by the people of the 
several states, for the term of three years ; to receive fixed sti- 
pends, by which they may be compensated for the devotion of 
their time to public service, to be paid out of the national 
treasury; to be ineligible to any ofiice established by a partic- 
ular state, or under the authority of the United States, (ex- 
cept those peculiarly belonging to the functions of the first 
branch,) during the term of service, and under the national 
government, for the space of one 3'-ear after its expiration. 

"4. Resolved, That the members of the second branch of 
the national legislature ought to be chosen by the individual 
legislatures; to be of the age of tliirty years, at bast; to 
hold their offices for a term sufficient to insure their indepen- 
dency—namely, seven years; to receive fixed stipends, by 
which they may be compensated for the devotion of their time 
to public service, to be paid out of the national treasury ; to 
be ineligible to any office established by a particular state, 
or under the authority of the United States, (except those 
peculiarly belonging to the functions of the second branch,) 
during the term of service, and under the national govern- 
ment, for the space of one year after its expiration. 

" 5. Resolved, That each branch ought to possess the right 
of originating acts. 

" Q. Resolved, That the national legislature ought to be 
empowered to enjoy the legislative rights vested in Congress 
by the Confederation; and, moreover, to legislate in all cases 
to which the separate states are incompetent, or in wliich the 
harmony of the United States may be interrupted by the exer- 
cise of individual legislation; to negative aJl laws passed by 
the several states contravening, in the opinion of the national 
legislature, the articles of union, or any treaties subsistino- 
under the authority of the Union. ° 



( 22) 

" 7. Resolved, That the right of suffrage in the first branch 
of the national legislature ought not to be according to the 
rule established in the Articles of Confederation, but accord- 
ing to some equitable ratio of representation; namely, in pro- 
portion to the whole number of white and other free citizens, 
and inhabitants of every age, sex, and condition, including 
those bound to servitude for a term of years, and three-fifths 
of all other persons not comprehended in the foregoing 
description, except Indians not paying taxes, in each state. 

" 8. Resolved, That the rights of suffrage in the second 
branch of the national legislature ought to be according to the 
rule established for the first. 

" 9. Resolved, That a national executive be instituted, to 
consist of a single person ; to be chosen by the national legisla- 
ture, for the term of seven years; with power to carry into 
execution the national laws ; to appoint to offices in cases not 
otherwise provided for; to be ineligible a second time; and 
to be removable on impeachment and conviction of malprac- 
tice, or neglect of duty; to receive a fix:ed stipend, by which 
he may be compensated for the devotion of his time to public 
service, to be paid out of the national treasury. 

" 10. Resolved, That the national executive shall have a 
right to negative any legislative act, which shall not be after- 
wards passed unless by two third parts of each branch of the 
national legislature. 

" 11. Resolved, That a national judiciary be established, 
to consist of one supreme tribunal ; the judges of which to be 
appointed by the second branch of the national legislature; 
to hold their offices during good behavior; to receive punc- 
tually, at stated times, a fixed compensation for their services, 
in which no increase or diminution shall be made, so as Lo 
affect the persons actually in office at the time of such increase 
or diminution. 

" 12. Resolved, That the national legislature be empowered 
to appoint inferior tribunals. 

" 13. Resolved, That the jurisdiction of the national judi- 
ciary shall extend to cases which respect the collection of the 
national revenue, impeachment of any national ofiicers, and 
questions which involve the national peace and harmony. 

" 14. Resolved, That provision ought to be made for the 
admission of states, lawfully arising within the limits of the 
United States, whether from a voluntary junction of govern- 
ment and territory, or otherwise, with the consent of a num- 
ber of voices in the national legislature less than the whole. 

" 15. Resolved, That provision ought to be made for the 
continuance of Congress, and their authorities, until a given 



( 23 ) 

day after the reform of the articles of union shall be adopted, 
and for the completion of all their engagements. 

" 16. Resolved, That a republican constitution, and its exist- 
ing laws, ought to be guaranteed to each state by the United 
States. 

" 17. Resolved, That provision ought to be made for the 
amendment of the articles of union whensoever it shall seem 
necessary. 

" 18. Resolved, That the legislative, executive, and judi- 
ciary powers within the several states ought to be bound by 
oath, to support the articles of union. 

" 19. Resolved, That the amendments, which shall be 
offered to the Confederation by the Convention, ought, at a 
proper time or times after the approbation of Congress, to be 
submitted to an assembly, or assemblies of representatives, 
recommended by the several legislatures to be expressly chosen 
by the people to consider and decide thereon." 



PROPOSITIONS OFFERED TO THE CONVENTION BY THE 
HON. MR. PATTERSON, JUNE 15, 1787. 

[Paper furnished by General Bloomfleld.] 

" 1. Resolved, That the Articles of Confederation ought to 
be revised, corrected, and enlarged, so as to render the Feder- 
al Constitution adequate to the exigencies of government, and 
the preservation of the Union. 

" 2. Resolved, That, in addition to the powers vested in the 
United States in Congress, by the present existing Articles 
of Confederation, they be authorized to pass acts for raising 
a revenue, by levying a duty or duties on all goods and mer- 
chandise of foreign growth or manufacture, imported into 
any part of the United States ; by stamps on paper, vellum, or 
parchment ; and by a postage on all letters and packages pass- 
ing through the general post-office' — to be applied to such fed- 
eral purposes as they shall deem proper and expedient; to 
make rules and regulations for the collection thereof; and 
the same from time to time to alter and amend, in such man- 
ner as they shall think proper. To pass acts for the regula- 
tion of trade and commerce, as well with foreign nations as 
with each other; provided, that all punishments, fines, for- 
feitures, and penalties, to be incurred for contravening such 
rules and regulations, shall be adjudged by the common-law 
judiciary of the states in which any offence contrary to the 
true intent and meaning of such rules and regulations shall be 
"committed or perpetrated; with liberty of commencing, in 
the first instance, all suits or prosecutions for that purpose 
in the superior common-law judiciary of such state; subject, 
nevertheless, to an appeal for the correction of all errors both 
in law and fact, in rendering judgment, to the judiciary of the 
United States. 

" 3. Resolved, That, whenever requisitions shall be neces- 
sary, instead of the present rules, the United States in Con- 
gress be authorized to make such requisitions in proportion 
to the whole number of white and other free citizens and in- 
habitants, of every age^ sex, and condition, including those 
bound to servitude for a term of years, and three fifths of all 
other persons not comprehended in the foregoing description, 
except Indians not paying taxes ; that, if such requisitions be 
not complied with in the time to be specified therein, to direct 
the collection thereof in the non-complying states; and for 
that purpose to devise and pass acts .directing and authorizing 
the same ; provided, that none of the powers hereby vested in 
the United States in Congress shall be exercised without the 



( 25 ) 

consent of at least states; and in that proportion, if 

the number of confederated, states should be hereafter in- 
creased or diminished. 

" 4. Resolved, That the United States in Congress be 
authorized to elect a federal executive to consist of per- 

sons, to continue in office for the term of years ; to re- 

ceive punctually, at stated times, a fixed compensation for 
the services by them rendered, in which no increase or dimi- 
nution shall be made, so as to affect the persons composing the 
executive at the time of such increase or diminution; to be 
paid out of the federal treasury; to be incapable of holding 
any other office or appointment during their time of service, 
and for years thereafter ; to be ineligible a second time, 

and removable on impeachment and conviction for malprac- 
tices or neglect of duty, by Congress, on application by a 
majority of the executives of the several states. That the exec- 
utive, besides a general authority to execute the federal acts, 
ought to appoint all federal officers not otherwise provided for, 
and to direct all military operations; provided, that none of 
the persons composing the federal executive shall, on any occa- 
sion, take command of any troops, so as personally to conduct 
any militar}' enterprise as general, or in any other capacity. 

" 5. Resolved, That a federal Judiciary be established, to 
consist of a supreme tribunal, the judges of which to be ap- 
pointed by the executive, and to hold their offices during good 
behavior ; to receive punctually, at stated times, a fixed com- 
pensation for their services, in which no increase or diminu- 
tion shall be made, so as to affect the persons actually in office 
at the time of such increase or diminution. That the judici- 
ary, so established, shall have authority to hear and determine, 
in the first instance, on all impeachments of federal officers ; 
and by way of appeal, in the dernier ressort, in all cases touch- 
ing the rights and privileges of ambassadors; in all cases of 
captures from an enemy; in all cases of piracies and felonies 
on the high seas ; in all cases in which foreigners may be inter- 
ested, in the construction of any treaty or treaties, or which 
may arise on any act or ordinance of Congress for the regula- 
tion of trade, or the collection of the federal revenue. That 
none of the judiciary officers shall, during the time they re- 
main in office, be capable of receiving or holding any other 
office or appointment during their term of service, or for 
thereafter. 

" 6. Resolved, That the legislative, executive, and judiciary 
powers, within the several states, ought to be bound, by oath, 
to support the articles of union. 



( 26 ) 

" 7. Resolved, That all acts of the United States in Congress 
assembled, made by virtue and in pursuance of the powers 
hereby vested in them, and by the Articles of Confederation, 
and all treaties made and ratified under the authority of the 
United States, shall be the supreme lavi^ of the respective 
states as far as those acts or treaties shall relate to the said 
states, or their citizens ; and that the judiciaries of the sever- 
al states shall be bound thereby in their decisions, any tiling 
in the respective laws of the individual states to the contrary 
notwithstanding. 

" And if any state, or any body of men in any state, shall 
oppose or prevent the carrying into execution such acts or 
treaties, the federal executive shall be authorized to call forth 
the powers of the confederated states, or so much thereof as 
may be necessary, to enforce and compel an obedience to such 
acts, or an observance of such treaties. 

" 8. Resolved, That provision ought to be made for the ad- 
mission of new states into the Union. 

" 9. Resolved, That provision ought to be made for hearing 
and deciding upon all disputes arising between the United 
States and an individual state, respecting territory. 

" 10. Resolved, That the rule for naturalization ought to 
be the same in every state. 

"11. Resolved, That a citizen of one state, committing an 
offence in another state, shall be deemed guilty of the same 
offence as if it had been committed by a citizen of the state 
in which the offence was committed." 



RESOLUTIONS OF THE CONVENTION. 

BEFERRED, ON THE TWENTY-THIRD AND TWENTY-SIXTH OF JULY, 
1787, TO A COMMITTEE OF DETAIL, [MESSRS, RUTLEDGB, RANDOLPH, 
GORHAM, ELLSWORTH, AND WILSON,] FOR THE PURPOSE OP RE- 
PORTING A CONSTITUTION. 

June " I. Resolved, That the government of the United 

20. States ought to consist of a supreme legisiative, judi- 
ciary, and executive. 

" II. Resolved, That the legislature consist of two 
branches. 

21. " III. Resolved, That the members of the first branch 
of the legislature ought to be elected by the people of 

22. the several states, for the term of two years; to be 

23. paid out of the public treasury ; to receive an adequate 
compensation for their services; to be of the age of 
twenty-five years at least; to be ineligible to, and in- 
capable of holding, any office under the authority of the 
United States, (except those peculiarly belonging to the 
functions of the first branch,) during the term of serv- 
ice of the first branch. 

25. " IV. Resolved, That the members of the second 

branch of the legislature of the United States ought to 
be chosen by the individual legislatures ; to be of the 
age of thirty years at least; to hold their offices for 
six years, one third to go out biennially; to receive a 
compensation for the devotion of their time to the pub- 
lic service ; to be ineligible to, and incapable of holding, 
any office under the authority of the United States, 
(except those peculiarly belonging to the functions of 
the second branch,) during the term for which they 
are elected, and for one year thereafter. 

" v. Resolved, That each branch ought to possess the 
right of originating acts. 
Postponed, 27. "VI. Resolved,^ That the national legislature 
July ought to possess the legislative rights vested in Con- 

16. gress by the Confederation; and moreover, to legislate, 
in all cases, for the general interests of the Union, and 

17. also in those to which the states are separately incom- 
petent, or in which the harmony of the United States 
may be interrupted by the excTcise of individual legis- 
lation. 

"VII. Resolved, That the legislative acts of the 
United States, made by virtue, and in pursuance, of 
the articles of union, and all treaties made and ratified 



( 28 ) 



Delaware shall send 1 

Maryland 6 

Virginia 10 

North Carolina 5 

South Carolina 5 

Georgia 3 



under the authority of the United States, shall be the 
supreme law of the respective states, as far as those 
acts or treaties shall relate to the said states, or their 
citizens and inhabitants; and that the judiciaries of 
the several states shall be bound thereby in their decis- 
ions, any thing in the respective laws of the individual 

July states to the contrary notwithstanding. 

16. " VIII. Resolved, That, in the original formation of 

the legislature of the United States, the first branch 

thereof shall consist of sixty-five members, of wliicti 

number 

New Hampshire shall send 3 

Massachusetts 8 

Rhode Island 1 

Connecticut 5 

New York 6 

New Jerse.v 4 

Pennsylvania 8 

But as the present situation of the states may probably 
alter in the number of their inhabitants, the legislature 
of the United States shall be authorized, from time to 
time, to apportion the number of representatives ; and 
in case any of the states shall hereafter be divided, or 
enlarged by addition of territory, or any two or more 
states united, or any new states created within the 
limits of the United States, the legislature of the 
United States shall possess authority to regulate the 
number of representatives, in any of the foregoing 
cases, upon the principle of their number of inhabi- 
tants, according to the provisions hereafter mentioned, 
namely : — Provided always, that representation ought 
to be proportioned according to direct taxation. And 
in order to ascertain the alteration in the direct taxa- 
tion which may be required, from time to time, by the 
changes in the relative circumstances of the states, — 

" IX. Resolved, That a census be taken within six 
years from the first meeting of the legislature of the 
United States, and once within the term of every ten 
years afterwards, of all the inhabitants of the United 
States, in the manner and according to the ratio recom- 
mended by Congress in their resolution of April 18, 
1783 ; and that the legislature of the United States 
shall proportion the direct taxation accordingly. 

" X. Resolved, That all bills for raising or appropri- 
ating money, and for fixing the salaries of the officers 
of the government of the United States, shall originate 
in the first branch of the legislature of the United 



( 29 ) 

July States, and shall not be altered or amended by the 

16. second branch; and that no money shall be drawn 
from the public treasury but in pursuance of appropri- 
ations to be originated by the first branch. 

" XI. Resolved, That, in the second branch of the 
legislature of the United States, each state shall have 
an equal vote. 

26. " XII; Resolved, That a national executive be insti- 

tuted, to consist of a single person, to be chosen by the 
national legislature for the term of seven years ; to be 
ineligible a second time ; with power to carry into exe- 
cution the national laws ; to appoint to offices in cases 
not otherwise provided for; to be removable on im- 
peachment and conviction of malpractice or neglect of 
duty ; to receive a fixed compensation for the devotion 
of his time to public service, to be paid out of the pub- 
lic treasury. 

21. " XIII. Resolved. That the national executive shall 

have a right to negative any legislative act, which shaU 
not be afterwards passed unless by two third parts of 
each branch of the national legislature. 

18. "XIV. Resolved, That a national judiciary be estab- 

lished, to consist of one supreme tribunal, the judges 

21. of wliich shall be appointed by the second branch of the 
national legislature; to hold their offices during good 

18. behavior ; to receive punctually, at stated times, a fi:xed 
compensation for their services, in which no diminu- 
tion shall be made, so as to affect the persons actually 
in office at the time of such diminution. 

" XV. Resolved, That the national legislature be 
empowered to appoint inferior tribunals. 

] 8. " XVI. Resolved, That the jurisdiction of the na- 

tional judiciary shall extend to cases arising under 
laws passed by the general legislature, and to such other 
questions as involve the national peace and harmony. 

" XVII. Resolved, That provision ought to be made 
for the admission of new states lawfully arising with- 
in the limits of the United States, whether from a 
voluntary junction of government and territory, or 
otherwise, with the consent of a number of voices m 
the national legislature less than the whole. 

" XVIII. Resolved, That a republican form of gov- 
ernment shall be guaranteed to each state; and that 
each state shall be protected against foreign and domes- 
tic violence. 



( 30 ) 

July " XIX. Resolved, That provision ought to be made 
23. for the amendment of the articles of union, whenso- 
ever it shall seem necessai7. 

" XX. Resolved, That the legislative, executive, and 
judiciary powers, within the several states, and of the 
national government, ought to be bound, by oath, to 
support the articles of union. 

" XXI. Resolved, That the amendments which shall 
be offered to the Confederation by the Convention 
ought, at a proper time or times after the approbation 
of Congress, to be submitted to an assembly or assem- 
blies . of representatives, recommended by the several 
legislatures, to be expressly chosen by the people, to 
consider axid decide thereon. 

" XXII. Resolved, That the representation in the 
second branch of the legislature of the United States 
consist of two members from each state, who shall vote 
per capita. 
26. " XXIII. Resolved, That it be an instruction to the 

committee, to whom were referred the proceedings of 
the Convention for the establishment of a national 
government, to receive a clause or clauses, requiring 
certain qualifications of property and citizenship, m 
the United States, for the executive, the judiciary, and 
the members of both branches of the legislature of the 
United States." 



THE CONSTITUTION IN BLOCK. 



FROM THE BEGINNING THROUGH THE 
LEGISLATIVE POWER. 

Taking up the Virginia plan, the resolutions of the 
convention in committee of the whole and in con- 
vention, and beginning with the first of each, the Vir- 
ginia plan would correct and enlarge the articles of 
the Confederation so as to accomplish the objects pro- 
posed by their institution, namely common defense, 
security of liberty, and general welfare, which objects 
were the objects of the Confederation and Union.^ 
The convention in committee of the whole, postpon- 
ing this first resolution of the Virginia plan at once 
resolved^ that a national government ought to be es- 
tablished to consist of a supreme legislative, judiciary 
and executive. Again (after the Jersey plan had been 
' rejected) the convention in committee of the whole 
resolved the same on June 19 ; then the convention 
sitting in convention adopted the same, but amended 
by substituting the words " government of the United 
States " for '' national government," so that the reso- 
lution read "Resolved, that the government of the 
United States ought to consist of a supreme legisla- 
tive, judiciary and executive." As amended, the reso 
lution was adopted by unanimous vote.^ 

But as will be observed, the Virginia plan provided 
further on in its resolutions that the government to 
be established should consist of a legislative, execu- 
tive and judiciary which should be supreme, so that 
the Virginia plan, the convention in committee of the 
whole twice, and the convention sitting in conven- 

1 See Article 3. 

2 May 30, the vote being tix states to one, one state divided. 

3 See Journal, June 20. 



( 32 ) 

tion were all agreed upon these propositions, ( 1 ) that 
the government should consist of a legislative, judi- 
ciary and executive, which (2) should be supreme. 
But on the third proposition there was a difference. 
The Virginia plan called the government to be estab- 
lished a national government, and so the convention 
in committee of the whole twice resolved, yet the con- 
vention in convention omitted the word " national," 
as stated, and used merely the designation " govern- 
ment of the United States " ; and though the word 
" national " remained in the succeeding resolutions 
of the convention in convention, it disappeared from 
the drafts of the Constitution gradually, and was left 
out of the completed instrument. The reason of this 
will be submitted on the comparison of the Jersey 
plan. The word " national " had been used to desig- 
nate the government of the United States in the Con- 
federation and Union; thus as early as December 
6, 1782, and again December 12, 1782, the Journal of 
Congress shows the government characterized as 
national by that body, and April 13, 1787, less than 
one month prior to the date set for the assembling of 
the convention, the Journal shows Congress begin- 
ning a Letter to the states to accompany the resolu- 
tions of Congress of March 21, 1787 — of which more 
later — with the language " Our national constitution 
having committed to us the management of the 
national concerns," etc. ; and the preamble to the reso- 
lution of Congress of February 21, 1787, calling the 
convention recites the desirability of a " firm national 
government. " 

Of the two propositions upon which the Virginia 
plan, the convention in committee of the whole and 
again in convention were all agreed, namely that the 
government should consist of a legislative, judiciary 
and executive which should be supreme, the first was 
a departure from the Confederation and Union but 
the second was only a readoption of its law, though 
during the Confederation and Union the law could 



( 33 ) 

not be enforced and was not observed. That by the 
constitutional law of the Confederation the several 
states were obligated to abide by the determinations 
of the United States in Congress, whereby the deter- 
minations of Congress were supreme over the several 
states appears from the following •} 

It is submitted that the records show that the states 
came into being both jointly and severally at the same 
instant of time, yet that it was by the order and direc- 
tion and the power of the states jointly, that is by the 
United States, that the several states were created 
and governments set up therein ; while the govern- 
ment for the Union was made by itself, by the states 
jointly, being then ratified by the states severally j 
wherefore the United States became supreme over the 
several states and the latter became bound by the 
former, though the latter retained qualified sovereign- 
ty for their separate purposes. 

As provinces of Great Britain the colonies were 
members of a union in the old world, the United King- 
dom of Great Britain, France and Ireland ; not ques- 
tioning its supremacy over them or the beneficence of 
the British constitution but only denying government 
without representation whereby to rectify their griev- 
ances. Had representation been granted them they 
w^ould have been put upon equal terms, it will be ob- 
served, with the constituent bodies of England hav- 
ing representation in Parliament, which were the 
counties and towns thereof, representation having 
come originally from the counties, and certain towns 
acquiring it later. Because denied representation, 
the colonies — without acting severally each for itself 
against Great Britain — sent deputies or representa- 
tives to a congress which assembled at Philadelphia, 
September, 1774, and became styled " the Congress 
of the United Colonies of North America." 

1 The following part on the origin and nature of the states and their gov- 
ernments is reprinted from a separate article, which may account for defects of 
order of arrangement and style of the whole. The same is true of what foliowe 
on direct taxes and on the limits of the Union. 



( 34 ) 

Thus was formed, as matter of fact, a new union in 
the new world succeeding to the old union in the old 
world, the consideration to the several colonies for en- 
tering it being that they acquired here the representa- 
tion in government denied to them over there, 
whereby their grievances were redressed and they 
were absolved from allegiance to the old world. 

That this union was created by the authority of the 
people of all the colonies, witness the motto '" Join or 
Die," which Mr. George Bancroft in his history of the 
United States says appeared in the Constitutional 
Courant in 1765, prior to the date set for the enforce- 
ment of the stamp act on November 1st of that year, 
and echoed over the continent ever afterwards. 

From the first the Union ordered and directed the 
colonies in fact, as the Journal of Congress evi- 
dences; thus by Congress, stjding themselves the rep 
resentatives of the United Colonies of North America, 
all proceedings were instituted and conducted leading 
up to the Declaration of Independence, the protests, 
petitions, addresses, entreaties, expostulations, and 
threats, and preparation for armed resistance and 
war; and the war was prosecuted and independence 
achieved by the states jointly, and not severally. 

So, it appears it was by the authority and direction 
of Congress that the several colonies set up new gov- 
ernments for themselves. June 9, '75, in response to 
a letter from the provincial convention in Massachu- 
setts, Congress resolved that no obedience being due 
to the acts of Parliament for altering the charter of 
that colony, the offices of governor and lieutenant- 
governor were vacant, and recommended to the pro- 
vincial convention to request the constituent places 
in the colony to choose representatives to the assem 
bly, which assembly should elect councillors, and the 
assembly and council should exercise the powers of 
government according to the charter of the colony, 
until his majesty should consent to proceed according 
thereto. Thereafter, May 1, '76, the province of Mas- 



( 35 ) 

sachusetts substituted " the government and people " 
for the style of royalty, as the authority for its legal 
procedure, and the province continued under the 
colonial charter till 1780, when it adopted a constitu- 
tion, being the last of the original states so to do. 
November 3, '75, Congress recommended to the 
province of New Hampshire to call a full and free 
representation of the people, who should if they 
thought necessary establish such form of government 
as in their judgment should best conduce to the happi- 
ness of the jDeople and to peace and good order in the 
province, during the continuance of the dispute be- 
tween the colonies and Great Britain. Early in '76 
New Hampshire adopted a constitution reciting that 
it was according to the recommendation of the Con- 
tinental Congress. November 4, '75, Congress recom- 
mended to South Carolina the same as to New Hamp- 
shire, and South Carolina also, early in '76, adopted 
her constitution. December 4, '75, Congress recom- 
mended the same to Virginia, and Virginia adopted 
her constitution in 1776 ; but it went beyond the rec- 
ommendation of Congress, being a permanent consti- 
tution ; and the Virginia Bill of Rights was also 
adopted, which was afterwards so much copied, the 
work ending June 29, three days before the resolution 
of independence in Congress, July 2. Yet in the 
meantime. May 10, '76, Congress resolved as fol- 
lows : " That it be recommended to the respective as- 
semblies and conventions of the United Colonies 
where no government sufficient for the exigencies of 
their affairs hath been hitherto established to adopt 
such governments as shall, in the opinion of the rep- 
resentatives of the people, best conduce to the happi 
ness and safety of their constituents in particular 
and America in general." May 15, '76, preamble to 
the last was adopted as follows : " Whereas his Brit- 
tanic majesty, in conjunction with the lords and 
commons of Great Britain, has by a late act of Par- 
liament, excluded the inhabitants of these United 
Colonies from the protection of his crown ; and 



( 36 ) 

whereas no answer whatever to the humble petition 
of the Colonies for redress of grievances and recon- 
ciliation with Great Britain has been or is likely to 
be given, but the whole force of that Kingdom, aided 
by foreign mercenaries, is to be exerted for the 
destruction of the good people of these Colonies ; and 
whereas it appears absolutely irreconcilable to reason 
and good conscience for the people of these colonies 
now to take the oaths and affirmations necessary for 
the support of any government under the crown of 
Great Britain, and it is necessary that the exercise of 
every kind of authority under the said crown should 
be totally suppressed, and all the powers of govern- 
ment exerted under the authority of the people of the 
Colonies, for the preservation of internal peace, vir- 
tue and good order, as well as for the defense of our 
lives, liberties and properties against the hostile in- 
vasions and cruel depredations of our enemies : 
Therefore resolved," etc., as above. 

After this, all the other provinces adopted consti 
tutions during '76 or early in '77, ending with New 
York, April 20, '77 — excepting only Rhode Island 
which having renounced allegiance to the king by act 
of assembly on May 4, '76, (being it seems the only 
colony to act prior to Congress' recommendation ) . 
continued on under her charter of 1663 until 1842, be- 
fore adopting a state constitution. In six colonies the 
new constitutions refer by way of recital to the recom- 
mendation of Congress to set up new governments: 
New York, Georgia, New Jersey, New Hampshire, 
Pennsylvania, and Delaware. So with the well-known 
Mecklenburg Resolutions from Mecklenburg County, 
North Carolina, which recognized the authority of the 
Continental Congress, but not of the province of 
North Carolina.^ 

July 4, '76, the new Union assumed to be and be- 
came a body corporate and politic, known to the law, 

1 For the constitutions of the states with the dates of adoption, see Charters 
and Constitutions of the United States, compiled by Mr. Ben Perley Poore by 
authority of Congress. 



( 37 ) 

taking its independent place among tlie nations of the 
earth, under the name and style of the United Stateg 
of America, where it was soon recognized by France 
and the United Netherlands, — as later by other na- 
tions, — and entered into treaties with them; and on 
that day it declared the colonies to be states. The 
Declaration of Independence closes, " We, therefore, 
the representatives of the United States of America 
in general Congress assembled . . do, in the 
name and by the authority of the good people of these 
colonies, solemnly publish and declare that these 
United Colonies are, and of right ought to be free and 
independent siates; that they are absolved from all 
allegiance to the British crown, . . and that a? 
free and independent states, they have full power U 
levy war, conclude peace, contract alliances, establis) 
commerce, and do all other acts and things which in 
dependent states may of right do. And for the sup- 
port of this declaration . . we mutually pledge 
to each other our lives, our fortunes and our sacred 
honor." 

The declaration is by the new power, the United 
States of America, by its representatives in general 
Congress assembled. It published and declared that 
the United Colonies, the colonies of the British em- 
pire which had been denied representation therein 
and entered into new Union here — not including Can- 
ada, Jamaica or any colony neglecting to unite, after 
all had been addressed — were free and independent 
states, absolved from allegiance to the British 
crow^n. Here the word " state " appears for the first 
time so far as observed, and would seem to have been 
used as in Europe at that time to denote the constitu- 
ent bodies or component parts or members, which by 
representation, make up the whole body represented 
by the general legislature. Thus the word is defined 
to-day (see Webster's dictionary: state), and thus it 
was defined then in France and the United Nether- 
lands where the states of the provinces constituted by 



( 38 ) 

representation the states-general of the whole: then 
Parliament seems to have been called the states-gen- 
eral of the British empire ;^ and no other country sup- 
plied such precedents to America at that time as these 
three. So, too, the resolution of Congress of May 10, 
'76, above quoted, refers to the colonies as particular 
constituents of America in general. So it would seem 
the Union, the United States of America, by its repre- 
sentatives in general Congress assembled, declared the 
colonies to be constituent parts or members of itself, 
of the American Union, thus making them states, en- 
titled in its states-general, the general Congress, to 
the representation denied them in the states-general 
of the British empire. 

Jointly and severally, united as well as separately, 
they came into being, but united rather than sepa- 
rately, these states or constituent members of Amer- 
ica were declared to have full power to levy war, con- 
clude peace, contract alliances, establish commerce, 
and do all other acts which independent states may 
do ; separately, the states never sought to exercise 
these powers, and it would seem untrue to say the rep- 
resentatives pledged to each other their lives, fortunes, 
and honor in support of a declaration to be free and 
independent of each other, at the very moment of 
union for establishing independence of Great Britain. 
Such interpretation would abrogate the elemental 
motto of the period " Join or Die." 

None of the states' constitutions, adopted at this 
period, prior to the Articles of Confederation and 
Perpetual Union, asserts the sovereignty of the state 
in any sense, except Connecticut, whose constitution 
preamble asserts the state's right to govern itself as 
a free, sovereign and independent state ; but no con- 
vention for framing a constitution was held in Con- 
necticut, the constitution there being merely an act 
of assembly, which declared the old charter of 1662 

1 See quotation from the Wealth of Nations, Book V, chap. 3, Rogers's 
edition, vol. 2, p. 535-6, on p. 60 hereof. 



( 39 ) 

to continue in force as the fundamental law of the 
state. 

The first constitution in many states asserts the 
right of the state to govern itself only in internal af- 
fairs, and in the other states there is no assertion at 
all; thus in the constitutions or declaration of 
rights accompanying them, of the states of Maryland,^ 
North Carolina,^ Pennsylvania/ and South Carolina,'* 
the right of the state is asserted to its " internal gov- 
ernment and police." This accorded with the Declara- 
tion of Eights of October 14, '74 which asserted the 
right of the colonies — having no representation in 
Parliament — to free and exclusive legislation in 
" cases of taxes and internal polity," but subject, how- 
ever, to the negative of their sovereign in the manner 
theretofore customary. And Blackstone says laws of 
police and revenue are not in force in the colonies.^ 
So it was natural the several constitutions adopted 
upon the direction of Congress should extend no 
further than to " internal government and police." 

The Union made its own government, the same be- 
ing ratified by its several members, the states : The 
Articles of Confederation and Perpetual Union were 
made by the states jointly and ratified by them sever- 
ally: On June 11, prior to the Declaration, Congress 
appointed a committee of one from each colony to pre- 
pare a draft of Articles of Confederation and Perpet 
ual Union. The committee reported a draft on July 
12. Thence for a period of sixteen months the terms 
and particulars of union were under consideration by 
Congress. On November 15, 77, Congress agreed 
to the articles, transmitting them to the states on 
November 17 for ratification. They run as follows in 
part : " Whereas, the delegates of the United States 
of America, in Congress assembled, did on the 15th 
day of November, in the year of our Lord 1777, and in 

1 Declar. of R., art. 2. 3 Const, art. 3. 

2 Const., art. 2. 4 preamble. 

5 Black. Com., vol. I, Introd., sec. 4, p. 107. 



( 40 ) 

the second year of the independence of America, agree 
to certain Articles of Confederation and Perpetual 
Union between the states of New Hampshire, Massa- 
chusetts Bay . . . and Georgia, in the words 
foJh wing, namely : Articles of Confederation and 
J^erpetual Union between the States of New Hamp- 
shire, Massachusetts Bay, etc. . . Article I. The 
style of this Confederacy shall be ' The United States 
of America.' Article II. Each state retains its sov- 
ereignty, freedom and independence and every power^, 
jurisdiction and right which is not by this Confedera- 
tion expressly delegated to the United States in Con- 
gress assembled. Article III. The said states hereby 
severally enter into a firm league of friendship with 
each other for their common defense, the security 
of their liberties, and their mutual and general wel- 
fare ; binding themselves to assist each other against 

all force offered to them, etc Article 

XIII. Every state shall abide by the determination 
of the United States in Congress assembled on all 
questions which by this Confederation are submitted 
to them. And the articles of this Confederation shall 
be inviolably observed by every state, and the Union 
shall be perpetual ; nor shall any alteration at any 
time hereafter be made in any of them, unless such 
alteration be agreed to in a Congress of the 
United States, and be afterwards confirmed by the 
legislatures of every state." The ratification runs 
" Know ye, we, the undersigned delegates, by virtue 
of the power and authority to us given for that pur- 
pose, do by these presents, in the name and in be- 
half of our respective constituents, fully and entirely 
ratify and confirm each and every of the said Articles 
of Confederation and Perpetual Union, and all and 
singular the matter and things therein contained. 
And we do further solemnly plight and engage the 
faith of our respective constituents that they shall 
aMde by the determinations of the United States in 
Congress assembled, on all questions which by the 



( 41 ) 

said Confederation are submitted to them ; and that 
the articles thereof shall be inviolately observed by 
the states we respectively represent ; and that the 
Union shall be perpetual." 

Here the existence of the Union as a body politic is 
assumed and its delegates assembled in Congress 
agree to certain articles (latin, articulus, diminutive 
of artus, joint ; little joints) that is particulars, 
terms of confederation and perpetual union. The ar- 
ticles are between (not by, or by and between as in 
articles of agreement usually, but only between) the 
several states or constituent bodies composing the 
Union. The name or style is formally given, the 
United States of America, as in the Declaration. In 
Article two the delegates of the United States of 
America agreed and determined that each state 
should retain its sovereignty, freedom and independ- 
ence, and every powder, jurisdiction and right not by 
the Confederation, that is by the United States of 
America, delegated to the United States in Congress ; 
that is the United States of America delegates to the 
legislative body, " The United States in Congress " 
a certain portion of sovereignty, freedom and inde- 
pendence, and some power, jurisdiction and right; 
and agrees that the residue be retained by the states 
severally. In Article three, the delegates of the 
Union agree and determine the character of the 
Union, that the states enter severally into a firm 
league of friendship binding themselves to assist one 
another against attacks, etc. In Article thirteen the 
delegates of the Union agree and determine that 
every state shall abide by the determination of Con- 
gress on all questions submitted to them by the Con- 
federation, and the articles shall be observed and the 
union be perpetual ; no alteration to be made but by 
agreement of Congress, that is, the states jointly, con- 
firmed by the states severally by their legislatures. 
The articles having been agreed and determined upon 
by the states jointly, are ratified by the states sever- 



( 42 ) 

ally, the states' legislatures authorizing the delegates 
who on the part and on behalf of their respective con- 
stituents ratify the same, and solemnly plight and 
engage the faith of their constituents to ahide by the 
determinations of Congress, etc. 

That the articles were made and ratified by the 
states both jointly and severally seems to have been 
matter of common observance at the time. Thus in 
the Crisis, Number Eleven, in his Address to the Peo- 
ple of America, in 1782, Thomas Paine says " In the 
meantime the Union has been strengthened by a legal 
compact of the states jointly and severally ratified, 
and that which before' was choice is now likewise the 
duty of legal obligation. The Union of America is 
the foundation stone of her independence, the rocK on 
which it is built ; and is something so sacred in her 
Constitution that we ought to watch every word we 
speak, and every thought we think that we injure it 
not, even by mistake." 

The obligations of the several states' governments 
to abide by the determination of the United States in 
Congress assembled on all questions submitted to 
them by the Confederation and Union constituted 
Congress supreme over the several states. Yet the 
question whether the states jointly or the states sev- 
erally were supreme in matters of controversy was 
ever the subject of difference of interpretation and 
construction, as will be observed. 



The other proposition that the government should 
consist of a legislative, judiciary and executive was 
a departure from the Confederation and Union, 
where the government consisted of the legislative, the 
United States in Congress: what executive or judi- 
ciary powers there were were vested in or dependent 
upon Congress ; the president was president of Con- 



( 43 ) 

gress, not of the United States of America ; the ju- 
diciary whose jurisdiction was confined to cases of 
captures at sea, piracies and felonies, etc., were ap- 
pealed from to Congress. A government consisting of 
legislative, judiciary and executive was in accord- 
ance with the constitutions of the several states and 
the constitution of Great Britain, the constitutions 
of the several states being modeled after the constitu- 
tion of Great Britain, having been drawn directly 
from the charters of the several colonies during the 
Revolution, which latter were formed, mutatis mutan- 
dis^ upon the constitution of the mother country. 

The charters of the several colonies show the legis- 
lative and executive separate and distinct from each 
other, from the first settlement of Virginia down to 
the Revolution, as they were in England during the 
same period, but the judiciary, whose powers had 
been exercised by the legislative and executive with 
resultant oppression of the people, had only recently 
become separate and distinct from them, and the sep- 
arate and distinct nature of the three powers was the 
subject of particular solicitude and expression at this 
period. Thus it is declared in the constitutions of 
several states framed during the Revolution that the 
legislative, executive and judiciary should be sepa- 
rate and distinct.^ 

As means of securing the independency of the judi- 
ciary from the oppression of the legislative and 
executive, the term of office of the judiciary was made 
" during good behavior," so that they were no longer 
subject to removal by the legislative as theretofore; 
and their compensation was made no longer subject to 
diminution during their term of office.^ As to Eng- 
land, Blackstone speaks of the British government 

1 Constitution Georgia, Art. 1; Declaration of Rights accompanying Con- 
stitution of Maryland, Art. 6 ; Constitution Massachusetts, Art. 30 ; Bill of Rights 
accompanying Constitution of New Hampsi^dre, Art. 37; Declaration of Rights 
accompanying the Constitution of North Carolina, Art. 4; Virginia Bill of 
Rights, Section 5. 

2 Constitution Maryland, Art. 30; Constitution Massachusetts, Art. 29: Bill 
of Rights accompanying Constitution of New Hampshire, Art. 35. 



(44 ) 

consisting of legislative and executive/ but later in 
the Commentaries he declares the judiciary to be sep- 
arate and distinct from the legislative and executive 
by virtue of certain acts recently passed for that pur- 
pose, securing the judiciary against removal from 
office by the legislative, by making their term during 
good behavior, and securing their compensation 
against diminution during their term.^ Blackstone 
and Montesquieu were the chief authorities of this 
period upon the British constitution it has always 
been admitted, and that they were the chief authori- 
ties consulted by members of the convention;^ and 
Montesquieu says the constitution of England con- 
sists of three sorts of powers, legislative, executive 
and judiciary.^ 

At the same time that the legislative, executive and 
judiciary were declared separate and distinct, and the 
independency of the judiciary secured, the oppression 
of the legislative and executive w^as sought to be re- 
strained. Several state constitutions of the period 
declare that the members of the legislative and execu- 
tive should be restrained from oppression by feeling 
and participating in the burdens of the people, and 
therefore the people have the right to return them to 
private station at fixed periods and fill the vacancies 
by election.^ 



Kecurring to the comparison, the resolution of the 
Virginia plan that the national legislature ought to 
consist of two branches^ was reported from the com- 
mittee of the whole twice"^ and adopted by the conven- 

1 Black. Com.. Book I, Chapter 2. 

2 Black. Com., Book I, chap. 7, p. 269. 

3 See the Federalist, No. 47, by Madison. Montesquieu is said to hn ve derived 
his reading of the British Constitution from Locke's treatise on Civil Govern- 
ment. 

4 Montesquieu, Spirit of Laws, Book XL 

5 Constitution Massachusetts, Art. 8 ; Constitution Pennsylvania, Art. 6; 
Virginia Bill of Rights, Section 5; Constitution Vermont, Art. 7. 

6 Resolution 3. 
1 Resolution 2. 



( 45 ) 

tion in convention.^ It was a departure from the 
Confederation and Union, wherein the legislative had 
but one chamber, and proceeded in accordance with 
the constitutions of the several states and the consti- 
tution of Great Britain. All the several states but 
Pennsylvania and Georgia had legislatures of two 
chambers ; and Blackstone and Montesquieu speak of 
the parliament of Great Britain as consisting of " two 
branches."^ 

The resolution of the Virginia plan that the mem- 
bers of the first branch of the legislature ought to be 
elected by the people of the several states, — and pro- 
viding for the duration of the term of office of mem- 
bers, their age, compensation, ineligibility to other of- 
fice, etc.,^ was reported from the committee of the 
whole twice* and was adopted by the convention in 
convention.^ It was a departure from the Confedera- 
tion and Union wherein the members of the single 
chamber were chosen by the several state legislatures, 
and proceeded in accordance with the constitutions of 
the several states and of Great Britain in respect of 
the corresponding branch of their legislatures. Black- 
stone says the members of that branch of the legisla- 
ture are " chosen by the people " of the several coun- 
ties and towns, which are the constituent bodies of 
England f and that house was likewise the popular 
branch of the legislatures of the several colonies, and 
thence the several states, elected by the people of the 
constituent bodies thereof, the several counties or 
towns.^ 

As to the election of members of the second branch, 
the committee of the whole house resolved twice^ and 

1 Resolution 2. 

2 Black. Com. Intro., Sec. 2; Montesquieu, Spirit of Laws, Book XI. 

3 Resolution 4. 

4 Resolution 3. 

5 Resolution 3. 

6 From 7 Henry IV, Chapter 15; 23 Henry VI, Chapter 15. 

7 Black. Com. Introduction, Sec. 2, and the several state constitutions, and 
Montesquieu Spirit of Laws, Book XL 

8 Resolution 4. 



( 46 ) 

the resolution was adopted by the convention in con- 
vention^ that the members of the second branch ought 
to be chosen by the individual legislatures, — provi- 
sion being made for the duration of the term of office 
of members, their age, compensation, ineligibility to 
other office, etc. This was a departure from the Vir- 
ginia plan, which proposed^ that the second branch 
be nominated by the individual legislatures, but 
elected by the first branch ; but it was according to 
the Confederation and Union, whereby the state legis- 
latures chose the delegates to Congress. 

The Virginia plan proposed,^ and the convention 
twice resolved in committee of the whole,'^ and then 
in convention,^ that both branches of the legislature 
should have the power to originate acts of legislation 
which was, again, according to the British constitu- 
tion, — when qualified as respects money bills, — and 
the constitutions of the several states.^ 

Concerning the powers of the legislative, the Vir- 
ginia plan proposed,^ and the convention in committee 
of the whole house resolved twice,^ and again in con- 
vention adopted the resolution,^ that the national 
legislature should have the legislative rights vested 
in Congress by the Confederation ; and moreover to 
legislate in all cases to which the separate states are 
incompetent, or in which the harmony of the United 
States may be interrupted by the exercise of individ- 
ual legislation. The convention in convention also 
added the clause " for the general interests of the 
Union," so that the whole read : " Resolved, That the 
national legislature ought to possess the legislative 
rights vested in Congress by the Confederation ; and 
moreover to legislate in all cases for the general in- 
terests of the Union, and also in those to which the 

1 Resolution 4. 

2 Resolution 5. 

3 Resolution 6. 
i Resolution 5. 

5 Resolution 5. 

6 Black. Com., Bk. 1, ch. 2, and Introd., Sec. 2. 

7 Resolution 6. 8 Resolution 6. 9 Resolution 6. 



( 47 ) 

states are separately incompetent, or in which the 
harmony of the United States may be interrupted by 
the exercise of individual legislation." This was an 
adherence to the Articles of Confederation and 
Union, and furthermore proceeded in accordance with 
the constitutions of the several states and the British 
constitution. 

The grant of power to the national legislature such 
as was vested in Congress by the Confederation was 
an adherence to the Confederation and Union, and 
the grant of legislative power in all cases to which the 
states are separately incompetent, or in which the 
harmony of the United States may be interrupted by 
the exercise of individual legislation, was according 
to the constitutions of the several states and of Great 
Britain, in that it reserved to the several states, 
the constituent bodies or component members of the 
Union, the identical legislative powers reserved to the 
constituent bodies of the several states and of Eng- 
land, the several counties and towns thereof, by that 
principle of their constitutions which is usually 
called the principle of local self-government, which is 
the ground of American and English constitutional 
law. 

The principle is thus stated by a leading authority 
of this country : " The primary and vital idea of the 
American sj^stem is that local affairs shall be man- 
aged by local authorities and only general affairs by 
the central authority. It was under control of this 
idea that a national constitution was formed. . . . 
This system seems a part of the race to which we 
belong. A similar subdivision of the realm for the 
purposes of municipal government has existed in Eng- 
land from earliest ages.''^ "Local self-government 
having always been a part of the English and Ameri- 
can systems, we shall look for its recognition in any 
such instrument " as a constitution.^ 

1 Cooley's Constitutional Limitations, ♦p. 189: 5th edition, p. 225 

2 Id., *p. 35. 



( 48 ) 

Keserving to the several states, the constituent 
bodies of the Union, the same legislative powers 
the several states and England reserved to their 
constituent bodies, the convention granted to the 
national legislature the same powers granted by 
the constitutions of the several states and of Eng- 
land to their legislatures, that is power to legis- 
late in all cases to which the constituent bodies 
are separately incompetent, or their individual 
legislation would interrupt the harmony of the 
whole ; thus the convention granted to the national 
legislature the legislative powers of a harmonious or 
perfect Union. To this the convention in convention 
further added the clause '^ for the general interests 
of the Union." This was a grant of power according 
to the purposes of Congress by the Confederation — 
whether or not Congress had power by the Con- 
federation adequate to their purposes. Thus article 
5 of the Confederation and Union begins, " For the 
more convenient management of the general interests 
of the United States, delegates shall be annually ap- 
pointed, etc." And article 9, paragraph 5, authorize? 
Congress to appoint committees and civil officers to 
manage the general affairs of the United States under 
their direction. Therefore, taking the legislative 
power entire, the convention proceeded according to 
the Articles of Confederation and Union, and also the 
constitutions of the several states and of England, 
resolving that the national legislature should have 
the legislative rights vested in Congress by the Con- 
federation, and moreover in all cases according to the 
purposes of Congress by the Confederation, and 
where the states are sejDarately incompetent, or their 
individual legislation might interrupt the harmony 
of the Union ; that is to say, the same legislative 
powers over the several states, the constituent bodies 
or component members of the Union, which the sev- 
eral states and England have over their constituent 



( 49 ) 

bodies, the several counties and towns thereof, which 
legislative power is that of perfect union. 

Here may be noted a resolution which it was 
moved and seconded to postpone the above res- 
olution in order to consider, but which was passed in 
the negative and rejected. It was to empower the 
legislature " to make laws binding on the people of 
the United States in all cases which may concern the 
common interests of the Union; but not to interfere 
with the government of the individual states, in 
any matters of internal police, which respect the gov- 
ernment of such states only, and wherein the general 
welfare of the United States is not concerned."^ 

This resolution while granting to the national legis- 
lature power as in the resolution adopted, yet would 
have reserved to the several states the identical 
powers they asserted their right to as colonies 
against Great Britain ; and moreover the powder 
granted to Congress was couched in the language 
used by Parliament which occasioned the as- 
sertion. By 6 George III, Chapter 12, ( 1766, ) Parlia- 
ment declared their right '' to bind the colonies and 
people of America subject to the crown of Great 
Britain in all cases whatsoever." This act has 
always been recited as one of the chief causes of 
the Eevolution. By the Declaration of Rights of 
the Continental Congress of October 14, 1774, it 
is recited, and denied, and the right of the several 
colonies asserted to govern themselves in " cases 
of taxes and internal police" on the ground of 
no representation in Parliament. When the state 
constitutions were adopted in 1776-77, several of them 
asserted the right to govern themselves in their in- 
ternal j)olice, as already observed, notwithstanding 
they had representation in Congress. June 28, '7R 
it is entered in the Journal of Congress, " Resolved 
that Congress cannot in any manner control the legis- 
lature of New Jersey in the internal police of said 

^ July 17, in convention. 



( 50 ) 

state." Now it was moved and seconded to grant to 
the national legislature the power of Parliament ac- 
cording to the principle of general ( self ) and local self- 
government, but reserving to the states the rights 
of internal police asserted against Parliament; but 
they having the representation in the United States 
denied to them in Great Britain, the motion passed 
in the negative and was rejected, as observed. 



Next the Virginia plan proposed (1) that the na 
tional legislature ought to be empowered to negative 
all laws passed by the several states, contravening, in 
the opinion of the national legislature, the articles of 
Union, or any treaty subsisting under the authority 
of the Union; and (2) to call forth the force of the 
Union against any member of the Union failing to ful- 
fill its duty under the articles thereof. The conven- 
tion in committee of the whole adopted the first clause 
of this proposal — that the national legislature ought 
to be empowered to negative all laws passed by the 
several states, contravening, in the opinion of the na- 
tional legislature, the articles of union, or any treaty 
subsisting under the authority of the Union, — 
but postponed the second clause providing for calling 
forth the force of the Union against members thereof, 
and the second clause was never taken up again. 
Again, June 19, the convention in committee of the 
whole reported the first clause. The convention sit- 
ting in convention rejected the first clause, but on 
the same day, and immediately thereafter, adopted the 
following instead, the vote on the adoption being 
unanimous ■} " VII. Resolved, That the legislative 
acts of the United States, made by virtue and in pur- 
suance of the articles of union and all treaties made 
and ratified under the authority of the United States, 

1 See Journal, July 17. 



( 51 ) 

shall be the supreme law of the respective states, as 
far as those acts or treaties shall relate to the said 
states or their citizens and inhabitants ; and that the 
judiciaries of the several states shall be bound thereby 
in their decisions, anything in the respective laws of 
the individual states to the contrary notwithstand- 
ing." 

The clause proposed by the Virginia plan and re- 
ported from the committee of the whole to the conven- 
tion was drawn from the British constitution. This 
appears from the Declaration of Rights of October 14, 
1774, where the right of the several colonies, having 
no representation in Parliament, is asserted to govern 
themselves in matters of taxation and internal po- 
lice, " subject to the negative of their sovereign as 
heretofore used and accustomed; " and Mr. Madison, 
who was a leading member of the Virginia delegation 
in the convention in drawing the Virginia plan,^ says 
in his introduction to his private" journal of the con- 
vention that '' the feature . . . which vested in 
the general authority a negative on the laws of the 
states was suggested by the negative in the head of 
the British empire, which prevented collisions be- 
tween the parts and the whole, and between the parts 
themselves."^ 

But the clause which was adopted instead of this 
by the convention in convention was drawn from the 
Articles of Confederation and Perpetual Union as in- 
terpreted and construed by the United States in Con- 
gress. This construction occurred as follows : 

The Confederation and Union by Articles 9 and 13, 
as well as by the terms of the ratification, conferred 
on Congress sole and exclusive power of entering into 
treaties and alliances — with some exception as to 
treaties of commerce — and the states w^ere obligated to 
abide by the determinations of Congress thereupon; 
but after the treaty of peace with Great Britain was 

1 General Washington is said to have copied Montesquieu's British consti- 
tution for use in drawing up the Virginia plan: Bancroft's History. 

2 Elliot's Debates, vol. 6, Introduction to the Debates in the Convention. 



( 52 ) 

made and entered into by Congress in 1783 the several 
states did not abide by it as determined by Congress, 
but their legislatures passed acts for the purpose of 
interjjreting, construing, and explaining the treaty 
to suit their several purposes, and also to oppose its 
execution according to its true intent and meaning as 
interpreted and construed by the United States in 
Congress. Great Britain made complaint of the non- 
fulfillment of the treaty according to its terms, and in 
consequence delayed the evacuation of frontier forts 
ceded to the United States, As a result of this, a lead- 
ing issue of the period, Congress, on March 21, 1787, 
resolved as follows, by vote unanimous : 

" Resolved, That the legislatures of the several states cannot 
of right pass any act or acts for interpreting, explaining, 
or construing a national treaty, or any part or clause of it; 
nor for restraining, limiting, or in any manner impeding, 
retarding or counteracting the operation and execution of the 
same, for that on being constitutionally made and ratified, 
and published, they become in virtue of the Confederation 
part of the law of the land, and are not only independent of 
the will and power of such legislatures, but also binding and 
obligatory on them. 

" Resolved, That all such acts or parts of acts as may be now 
existing in any of the states, repugnant to the treaty of peace, 
ought to be forthwith repealed, as well to prevent their con- 
tinuing to be regarded as violations of that treaty as to avoid 
the disagreeable necessity there might otherwise be of raising 
and discussing questions touching their validity and obliga- 
tion. 

" Resolved, That it be recommended to the several states to 
make such repeal rather by describing than reciting the said 
acts, and for that purpose to pass an act declaring in general 
terms that all such acts or parts of acts as are repugnant to 
the treaty of peace between the United States and his British 
majesty, or any article thereof, shall be and thereby are 
repealed, and that the courts of law and equity in all causes 
and questions cognizable by them respectively and arising 
from and touching the said treaty shall decide and adjudge 
according to the true intent and meaning of the same, any 
thing in the said acts or parts of acts to the contrary thereof 
in any wise notwithstanding." 



( 53 ) 

To accompany this resolution, Congress issued the 
following Ijetter to the several states bearing date 
April 13, 1787 : 

" Our national constitutional having committed to us the 
management of the national concerns with foreign states and 
powers, it is our duty to take care that all the rights they 
ought to enjoy remain inviolate. And it is also our duty to 
provide that the essential interests and peace of the whole 
confederacy be not impaired or endangered by deviations from 
the line of public faith into which any of its members may 
from whatever cause be inadvisedly drawn. Let it be remem- 
bered that the thirteen independent states have,^ by 
express delegation of power formed and vested in us 
a general, though limited sovereignty for the general and 
national purposes specified in the confederation. . 
Such laws — as recommended by the resolution of March 21 
aforesaid — would answer every purpose and be easily formed. 
The more they were of like tenor throughout the states the bet- 
ter. They might each recite that whereas certain laws or stat- 
utes made and passed in some of the United States are regard- 
ed and complained of as repugnant to the treaty of peace with 
Great Britain, etc., Be it enacted by . . . and it is hereby 
enacted by the authority of the same, that such of the acts or 
parts of the acts of the legislature of the state as are repugnant 
to the treaty of peace between the United States and his Brit- 
ish majesty or any article thereof, shall be and they hereby are 
repealed. And further that the courts of law and equity with- 
in this state be and they hereby are directed and required in 
all causes and questions cognizable by them respectively, and 
arising from and touching the said treaty to decide and ad- 
judge according to the tenor, true intent and meaning of the 
same, any thing in the said acts or parts of acts to the contrary 
thereof in any wise notwithstanding." 

Here Congress resolved unanimously, and issued a 
Letter to the several states accompanying the resolu- 
tion only one month prior to the date already set for 
the assembling of the convention, that by virtue of 
the Confederation national treaties constitutionally 
made and ratified were part of the law of the land, 
binding and obligatory on the states; and courts of 
law and equity were to be directed and required to 
decide and adjudge accordingly, any thing in state 

1 Jointly and severally. 



(54) 

laws to the contrary in any wise notwithstanding. 
This was a construction of the Articles of Confedera- 
tion and Perpetual Union, that, as the acts of Con- 
gress, so the treaties of Congress made pursuant to the 
constitution, became the law of the land, binding and 
obligatory on the states.^ From this resolution of 
Congress, it may be submitted, the resolution of the 
convention in convention was drawn. 

Comparing the clause negativing the laws of the 
several states adopted by the convention in committee 
of the whole, from the Virginia plan, from the British 
constitution, with the clause adopted instead by the 
convention in convention from the resolution of Con- 
gress declaring the laws and treaties of the United 
States to be supreme, the following may be observed : 
First, that the latter clause was like the former in 
that it was a negative on the state latvs repugnant to 
the constitutional acts and treaties of the Union, be- 
cause laws repugnant to each other cannot co-exist, 
but one or the other must give way, and the laws of 
the United States being supreme and binding on the 
several states, the acts of the several states contrary 
or repugnant thereto must be void. Second, that the 
former clause was like the latter in that the negative 
on state laws would be not by the enacting or creating 
of new law, but by the declaration of the meaning of 
old law, the interpretation or construction of the con- 
stitutional law, because laws contrary to the consti- 
tution must be void, wherefore the only ofSce of the 
negative is to interpret and declare the constitution 
to pronounce them void. But — third — the two clauses 
differ in that the former was expressed to be a nega- 
tive on the state laws while the latter was not; the 
former was an express, direct negative, the latter was 
an implied, indirect negative, a negative by necessary 
consequence. That the object of both clauses was the 

1 Ii was afterwards held by the Supreme Court of the United States that the 
treaty of peace with Great Britain worked a repeal of the laws of the several 
states repugnant thereto ; the occasion being the impediments which the laws 
of Virginia put to the collection of British debts in sterling money by virtue of 
the treaty. Ware Admr. v. Hylton, 3 Dallas, U. S., 199. 



( 55 ) 

same, to negative state laws contrary to the constitu- 
tional acts and treaties of Union, the difference being 
that the former was express and direct, the latter in- 
direct and consequential appears in the proceedings 
of the convention, showing the further purpose of 
the clauses. 

The clause of the Virginia plan which came imme- 
diately after the exj)ress negative on the state laws 
and was by the convention in the committee of the 
whole postponed, resolved that the national legisla 
ture should be empowered to call forth the force of the 
Union against any member of the Union failing to ful- 
fill its duty under the articles thereof/ During the 
Confederation such power as this could never be exer- 
cised, although the necessity for it appears to have 
been felt very early, and Mr. Madison, at least, seems 
to have claimed that the Confederation and Union 
possessed the " implied right of coercion " of its mem- 
bers by virtue of its inherent nature.^ General Wash- 
ington in his letter to the governors and presidents 
of the several states on relinquishing command of the 
army in June, 1783 — his " Legacy " so-called — urged 
that the Confederation should have such power,^ and 
Mr. Madison urged the same, as did also Mr. Jeffer- 
son.* Moreover the Jersey plan offered the same, as 
will be observed, offering authority to call forth the 
powers of the confederated states or so much thereof 
as may be necessary to enforce and compel obedience 
to the acts and treaties of the United States pursuant 
to the confederation, against any state or body of men 
in any state opposing or preventing the carrying into 
execution of such acts or treaties.^ So the convention 
following as it did, one or the other plan, the Virginia 
plan or the Jersey plan, as will be observed, would 
very probably have adopted this clause, but that the 

1 Resolution 6. 

2 Bancroft's History of the United States, vol. 5, p. 455-457. 

3 Bancroft, vol. 6, pp. 83-6. Fiske's Critical Period of American History, p. 54* 

4 Bancroft, vol. 5, pp. 456-67. Fiske's Critical Period, pp. 99-100. 

5 Resolution 7, par 2. 



( 56 ) 

negative on state laws just adopted was a means to 
the same end but milder and easier. To negative state 
laws contravening the acts and treaties of Union 
would reach back of any physical acts violative of the 
duty of the states to the Union, or opposing or pre- 
venting the execution of the laws of the Union and 
eradicate and destroy the authority for such acts, 
thus obviating the necessity for a resort to coercion of 
arms against a state or any one acting by authority 
of a state, because the subject of coercion would have 
no state authority to rely upon, while the exercise of 
coercion would be but the execution of the laws of the 
United States. Thus was the coercion of law substi- 
tuted for the coercion of arms. That the postpone- 
ment of force of arms was because the negative on 
state laws was a milder means to the same end is 
stated by Mr. Madison who moved the postponement 
in committee of the whole before the clause came to a 
vote.-"^ But an indirect or consequential negative was 
a still milder means to the same end, than was an ex 
press negative. As, rather than coerce a state by force 
of arms or any one acting by its authority, it would be 
milder to negative the state law and so eradicate the 
authority, so, rather than express the negative on the 
state law, it were still milder, less offensive to state 
pride, to declare the supremacy of the United States 
law, Avhereby the mere interpretation of the latter 
contradicting the former would operate silently and 
by necessary consequence, rather than directly to 
over-rule and negative the former. That this was the 
reason of the substitution of the implied negative for 
the express negative appears from the debates of July 
17 when the former was finally adopted.^ 

Another matter of observance with respect of these 
two clauses is that as the express negative on the 
states was to be by the national legislature whenever 

1 Mr. Mpdison's journal of Debates in Convention, vol. 5 Elliot's Debates, 
May 31. And see Mr. Wilson's contrast of the Virginia and Jersey plans, on 
June 16; reported in Yates' Minutes. 

2 It was feared the express negative would disgust the several states. 



( 57 ) 

in their opinion state laws should contravene the acts 
and treaties of the Union, so in the resolution of Con 
gress aforesaid the implied negative was to be hj the 
national legislature on the ground that state laws 
were contrary to the constitutional acts and treaties 
of the Union m their opinion. In other Avords, in the 
Virginia plan and the resolution from the committee 
of the whole, by the express negative, and in the reso- 
lution of Congress wherefrom the resolution of the 
convention in convention was drawn, by the implied 
negative, the interpretation and construction of the 
constitution belonged to the legislative, rather than 
to the executive or judiciary. Accordingly, Congress 
resolving that their acts and treaties made pursuant 
to the constitution were supreme, recommended to the 
several state legislatures formally to repeal their acts 
repugnant thereto, and furthermore to direct and re- 
quire courts of laws and equity of the several states 
to decide and adjudge according to the true intent and 
meaning of such acts and treaties of Congress, that is, 
according to the interpretation of Congress.^ 

In the Confederation and Union it belonged to Con- 
gress to interpret and construe the Articles, the first 
constitution of America ; by the constitution of Great 
Britain the same belonged to Parliament, although 
the express negative on the several colonies in Amer- 
ica was exercised by the British executive;^ by the 

1 By the resolution of Congress -wherefrom the resolution of the convention 
in convention was drawn, and by the resolution of the Virginia plan and of 
the committee of the whole, the matter would read: "Resolved, that the 
legislative acts of the United States made by virtue and in pursuance of the 
articles of union, in the opinion of the national legislature, and all treaties made 
and ratified under the authority of the United States, in the opinion of the 
national legislature, shall be the supreme law of tne respective states, as far as 
those acts or treaties shall relate to the respective states, or their citizens or 
inhabitants; and that the judiciaries of the several states shall be bound there- 
by in their decisions, anything in the respective laws of the individual states to 
the contrary notwithstanding." 

2 But the laws of Parliament having been supreme over the several colonies. 
Parliament, by the enactment and interpretation of legislation contrary to the 
acts of the several colonies, had exercised over them the indirect or implied 
negative as certainly and effectually as the British executive had exercised over 
them the express negative, and in the same way the legislatures of the several 
states had indirectly negatived the county and town governments within their 
respective states. 



( 58 ) 

constitutions of the several states the same belonged 
at that time to their legislatures; and it is note- 
worthy that this is the only point wherein all the pre- 
cedents, American and English, were agreed, namely, 
that interpretation belonged finally to the legislative, 
rather than to the executive or judiciary. In sum, it 
may be said of these clauses from the British and 
American constitutions, that both were interpreta- 
tions of the constitution for the purpose of putting 
the negative on the laws of the several states repug- 
nant to the acts and treaties of the Union, but the 
former was express and direct, the latter indirect and 
consequential ; but both were to avoid coercion of the 
states or their authority by force of arms ; and both 
were, by the precedents, exercised by the legislative. 



RULES OF REPRESENTATION AND DIRECT 

TAXATION, AND THE MEANING 

OF DIRECT TAXATION. 



Concerning the rule or measure of representation 
from, or suffrage or membership of the several states 
in the national legislature, the Virginia plan proposed 
a rule in the alternative, either one of two, as one or 
the other should seem best ; that it should be accord- 
ing to their quotas of contribution, or to their num- 
bers of free inhabitants ; and this rule was to obtain 
in both branches of the legislature.^ The committee 
of the whole accepted the first alternative, and re- 
solved that the suffrage of the states in the first 
branch of the legislature should be not as in the Con- 
federation — where the several states voted equally — 
but according to the whole number of their free inhab- 
itants and three-fifths of all others, which rule was the 
rule of their quotas of contribution as will be ob- 
served ; and that representation in the second branch 
should be as in the first.^ 

The convention in convention adopted the rule from 
the committee of the whole as to the first branch, that 
representation should be according to the whole num- 
ber of free inhabitants and three-fifths of all others, 
and they applied this rule for the first formation of 
the legislature, ascertaining and declaring how many 
members each state should have in the first formation, 
and for the future provided that representation 
should be apportioned from time to time according to 
population; then they provided that representation 
ought to be proportioned according to direct taxation, 
and that in order to ascertain the latter from time to 

1 Resolution 2. 

2 Resolutions 7 and 8, the rules for the two branches being separated. 



( 60 ) 

time, a census should be taken every ten years of all 
the inhabitants of the United States, in accordance 
with the ratio recommended by the resolution of Con- 
gress of April 18, 1783, and direct taxation should be 
proportioned accordingly. But all bills for raising 
money should originate in the first branch of the legis- 
lature, and not be altered or amended by the second. 
And in the second branch of the legislature the sev- 
eral states should have equal votes.-"^ 

The Virginia plan in its first alternative, that the 
several states should be represented in the national 
legislature according to their quotas of contribution, 
was according to that principle of the British const! 
tution which the colonies had contended for and made 
the cause of the Revolution, the principle that the 
members of the empire should be represented in pro 
portion as they were taxed. Speaking of the ex- 
tending of British taxation to the colonies, a British 
authority, Adam Smith, thus stated the principle in 
1776: 

" By extending the British system of taxation to all 
the different provinces of the empire inhabited by 
people of either British or Euroj)ean extraction, a 
much greater augmentation of revenue might be ex- 
pected. This however, could scarce perhaps be done 
consistently with the principles of the British consti- 
tution, without admitting into the British Parlia- 
ment, or if you will, into the states-general of the 
British empire, a fair and equal representation of all 
those different provinces, that of each province bear- 
ing the same proportion to the produce of its taxes 
as the representatives of Great Britain might bear to 
the produce of the taxes levied upon Great Britain.'-^ 

And Blackstone says, " a tax granted by the Parlia- 
ment of England shall not bind those of Ireland be- 
cause they are not summoned to our Parliament."^ 

1 Resolutions 8, 9, 10, and 11. 

2 Wealth of Nations, published in 1776: Book V, chap. 3: Rogers's edition, 
vol. 2, p. 535-6. 

3 Black. Com., Introd., sec. 4, vol. 1, p. 101. 



( 61 ) 

But though the Virginia plan proposed the British 
constitutional principle of representation of the mem- 
bers of the Union, that it should be according to their 
quotas of contribution, yet the rule which it proposed 
was the American rule, the rule of the Confederation 
and Union as amended. In the Confederation and 
Union the rule of quotas of contribution from the 
states had been the value of their lands with improve- 
ments thereon, but by resolution of Congress of April 
18, 1783, recommended to the states for ratification, 
the Confederation and Union had been amended so 
that the states should contribute according to the 
whole number of their free inhabitants and three- 
fifths of their slaves, and this amendment had been 
ratified by at least eight states, and was accepted 
without dissent in the convention as the rule of quotas 
of contribution, as is elsewhere more fully set out. 
On this change of rule the only question was, — and 
that question was the subject of much consideration, 
the :Xorth and South dividing upon it, — whether the 
rule should be the whole number of free inhabitants, 
or the whole number of free inhabitants together with 
three-fifths of the slaves, — that is whether, and to 
what degree slaves should be included in the numbers ; 
so when the Virginia plan proposed that the states 
should have suffrage in proportion either to their 
quotas of contribution, or in the alternative, their 
number of free inhabitants, the only rule of quotas 
known as an alternative to the number of free inhabi- 
tants being the number of free inhabitants and three 
fifths of the slaves, it was equivalent to proposing on 
the one hand the principle of the Eevolution, of repre- 
sentation according to taxation, together with the rule 
which had been settled between the north and south 
after much controversy, the rule of numbers including 
three-fifths of the slaves, or, in the alternative, the 
exclusion of the slaves from the rule of representa- 
tion, which would violate the principle of representa- 
tion according to taxation, unless the compromise of 



( 62 ) 

1783 as to the slaves was set aside and that subject re- 
opened to consideration. 

The convention in committee of the whole accepted 
the first alternative as stated and resolved that repre- 
sentation should be according to the whole number of 
free inhabitants and three-fifths of all others, which 
was the rule of contributions in the first branch ; and 
in the second branch the same; thus impliedly 
adopting the British constitutional principle and ex- 
pressly adopting the American rule, and these for 
both branches. 

The convention in convention adopted the rule and 
principle expressly for the first branch, applying the 
rule for representation in the first formation of the 
legislature, and providing for regulation of represen 
tation in future according to population, and stating 
the principle that representation should be according 
to direct taxation, — for direct taxation is the name al- 
ways given in Great Britain, the several states, and 
elsewhere, to taxation of the constituent bodies indi- 
vidually in contrast to their taxation collectively, the 
former taxing each directly, the latter only indirectly 
— as is elsewhere observed : then they provided for de- 
cennial censuses to ascertain the population accord- 
ing to the ratio of the Confederation amendment 
aforesaid, whereby direct taxes as well as representa- 
tion should be apportioned: For the second branch 
they abandoned both rule and principle and followed 
the Confederation, resolving that therein each state 
should vote equally; but in consideration thereof it 
was further resolved that the first branch should orig- 
inate all bills for money which should not be altered 
or amended by the second branch, which again was 
according to the British constitution, where the house 
of lords cannot amend bills for revenue.^ 

This was, — with what it involved, — the leading com- 
promise of the convention, as has been always recog- 

1 Black. Com., book I, chap. 2, p. 169, Crabbe's History of English Law, p. 521. 



( 63 ) 

nized. It is indicated in the several resolutions, in that 
in the Virginia plan the rule of representation for both 
branches of the legislature is put immediately after 
the first resolution to revise the Confederation, but in 
the resolutions of the committee of the whole and also 
in convention the rules of representation for both 
branches come at the end of the resolutions upon the 
legislative, since then only could the rules of repre- 
sentation be agreed upon.^ 

The steps of this compromise, taken from the 
Journal, are as follows: July 2, a committee of one 
member from each state was appointed upon the 8th 
resolution from the committee of the whole, and so 
much of the 7th resolution as was not already agreed 
to, being so much of the 7th resolution as provided the 
rule of representation in the first branch. July 5, the 
committee made report in two paragraphs, the first 
paragraph containing two clauses, the first clause 
being that in the first branch each state should have 
one member for every 40,000 inhabitants of the 
description reported in the 7th resolution from com- 
mittee of the whole (i. e. free inhabitants and three- 
fifths of others), but each state to have at least one 
member; and the second clause being that all billa 
for revenue should originate in the first branch, and 
not be altered or amended by the second, — no money to 
be drawn from the public treasury but pursuant to 
appropriations originating in the first branch; the 
second paragraph being that in the second branch 
each state should have equal vote. This was the com 
promise made in committee, and it would seem to have 
been at once accepted, for, though, July 6, the first 
clause was referred to a committee of five, this refer 
ence appears to have been merely in order to ascertain 
definitely how many members should make up the 
legislative first branch in its first formation, because 

1 In convention the legislative powers and the rules of representation were 
settled July 16 ih and July 17th; the latter just before the former. 



( 64 ) 

the second clause was adopted on the same day, and 
July 7 the second paragraph was adopted, and July 9 
the committee of five on the first clause made report 
of two paragraphs, the first paragraph providing that 
the first branch should have fifty-six members at first, 
and the second paragraph providing for regulating 
future membership on the principles of wealth and 
number of inhabitants, and the second paragraph was 
at once adopted, the first paragraph being again re- 
ferred to another committee of one member from each 
state, which latter reference would seem again merely 
to reascertain the membership of the first branch at 
first, because July 10 the latter committee reported 
sixty-five members for the first branch at first (in- 
stead of fifty-six members) and how many each state 
should have, and this report was at once adopted. 
Then July 11 the paragraph on regulating future rep- 
resentation according to wealth and number of in- 
habitants was amended to provide a census to ascer- 
tain the same. July 12 it was resolved (and it is 
worthy of note that the resolve was unanimous) that 
direct taxation ought to be proportioned according to 
representation ; then that there should be censuses 
whereon to base direct taxation, which censuses 
should be according to the ratio of the resolution of 
April 18, 1783, aforesaid. July 13 the principles of 
wealth and number of inhabitants whereon to appor- 
tion representation were altered to number of inhab- 
itants alone, by striking out " wealth." 

Thus was expressly stated the principle from the 
British constitution, which had occasioned the Revolu- 
tion, and had been assumed in the resolutions from the 
committee of the whole, and was adopted with the rule 
of the Confederation amended ; moreover reference to 
slaves as " wealth " was eliminated, they being in- 
cluded in the number of inhabitants ; and the census 
was established to include slaves, yet not expressed as 
the basis of representation but as the basis of direct 



( 65 ) 

taxation, representation then being proportioned ac- 
cording to direct taxation. July 16, the whole of the 
report from the committee appointed July 2nd, as 
amended, was adopted. 



Here where the phrase " direct taxes " first appears 
in the Journal, coupled with representation, each be 
ing proportioned according to the other, and both 
according to the ratio of the resolution of Congress 
of April 18, '83 — and in the compromise whereby the 
means were retained to the several states to construe 
the government according to the Jersey plan — it 
seems proper to set out the further evidence upon the 
meaning of direct taxes.^ 

During the time of the colonies the revenues levied 
by Great Britain were of two kinds ; those parti- 
tioned or apportioned out into quotas and laid one 
upon each colony, and those laid all one and undi- 
vided or unapportioned throughout all the colonies. 
In the matter of raising revenues, as also troops, the 
colonies were considered separately or united, sever 
ally or jointly, as many or as one. 

The " stam]3-tax," so called, of 1765, by 5 George 
III, Oh. xii, was a duty laid all one and undivided 
throughout the colonies, and provided that from and 
after November first of that year there should be 
raised, levied, collected and paid throughout the col- 
onies and plantations in America for " every skin 
or piece of vellum or ]3archment or sheet or piece of 
paper on which should be engrossed, written or 
printed any declaration, plea, replication, rejoinder, 
demurrer or other pleading, or any copy thereof, in 
any court of law within the British colonies and plan- 
tations In America, a stamp duty of three pence." 
Further paragraphs imposed further stamp duties on 
pieces of vellum, parchment or paper used for other 

1 From Direct Taxes in the Constitution, bv the writer. 



( 66 ) 

purposes in courts of law. The words vellum, parch- 
ment or paper, are to be observed because they ap 
peared again in the Jersey plan of government in the 
convention of 1787 as the subject matter of the duty 
on stamps there offered to be conferred on Congress, 
and came down into the war revenue law enacted by 
Congress in the year 1898, which provides for revenue 
by stamjjs upon vellum, parchment or paper. Besides 
the duties on stamps the main subjects of duties laid 
one and undivided throughout the colonies were im 
ports and postage, the acts of Parliament imposing 
these being recited among the list of grievances of the 
colonies against the crown in the declarations and 
addresses of the Continental Congress of 1774, nota- 
bly the Declaration of Rights of October 14th. 

Later, Great Britain, being unable to raise rev- 
enues throughout the colonies as one, resorted to the 
expedient, not then new, of partitioning or appor- 
tioning or parcelling out quotas to or on the colonies 
separately ; with the purpose, some said in the col 
onies, of dividing them against themselves, the more 
easily to reduce them to " unconditional submission."^ 
On May 20, 1775, a resolution of the House of Com- 
mons of Great Britain of February 20th of that year, 
was laid before Congress as follows : " Resolved : 
That when the governor, council and assembly 
or general court of any of his Majesty's provinces 
or colonies in America shall propose to make pro- 
vision according to the condition, circumstances and 
situation of such province or colony, for contributing 
their proportion of the common defense (such pro- 
portion to be raised under the authority of the general 
court or general assembly of such province or colony, 
and disposable by Parliament), and shall engage to 
make provision also for the support of the civil gov- 
ernment and the administration of justice in such 
province or colony, it will be proper, if such proposal 
shall be approved by his Majesty and the two Houses 

1 See The Crisis, No. 3, by Thomas Paine, published at this time. 



( 67 ) 

of Parliament, and for so long as such provision shall 
be made aecordinglyj to forbear in respect of such 
province or colony to levy any duty, tax or assess- 
ment, except only such duties as it may be expedient 
to continue to levy or to impose for the regulation of 
commerce, the neat (net) produce of the duties last 
mentioned to be accredited to the account of such 
province or colony respectively." This resolution, it 
appears from the Journal of Congress of May 30, '75, 
the House of Commons recommended the several col- 
onies to adopt as the basis of a compact. It was be- 
lieved to emanate from Lord North. 

July 31, '75, the Journal of Congress, reciting this 
resolution of the House of Commons, continues : 
" The House (Congress) took the said resolution into 
consideration and are thereupon of opinion : That 
the colonies of America are entitled to the sole and 
exclusive privilege of giving and granting their own 
money ; that this involves a right to deliberate 
whether they will make any gift, for what purpose 
it shall be made, and what shall be its amount ; and 
that it is a high breach of this privilege for any body 
of men extraneous to their constitutions to prescribe 
the purx30ses for which money shall be levied upon 
them, to take upon themselves the authority of judg- 
ing of the conditions, circumstances and situations, 
a,nd of determining the amount of the contribution 

to be levied That the suspension of 

the exercise of the pretended mode of taxation being 
made commensurate with the continuance of our 
gifts, these must be perpetual to make that so. . 

. We are of opinion the proposition is alto 
gether unsatisfactory because it imports only a sus- 
pension of the mode, not a renunciation of the pre- 
tended rights to tax us Upon the whole 

this proposition seems to have been held up to the 
world to deceive it into a belief that there was 
nothing in dispute between us but the mode of levy- 
ing taxes ; and that the Parliament having now been 



( 68 ) 

so good as to give up this, the Colonies are unreasona- 
ble if not perfectly satisfied ; whereas our adversaries 
still claim a right of demanding ad libitum, and of 
taxing us themselves to the full amount of their de- 
mand if we do comply with it. This leaves us 
without anything we can call property." It should 
be observed here that the proposition was that the 
colonies should bind themselves by compact to make 
contributions, because in former times they had, in 
fact, made contributions of money, as of troops, which 
they claimed were made only voluntarily. 

The British point of view of this matter is set out, 
probably as fairly as may be, in Adam Smith's 
Wealth of A'ations, published in 1776. It is there 
said •} " It has been proposed, accordingly, that the 
Colonies should be taxed by requisition, the Parlia- 
ment of Great Britain determining the sum which 
each colony ought to pay, and the Provincial Assem- 
bly assessing and levying it in the way that suited 
best the circumstances of the province. What con- 
cerned the whole Empire would in this way be 
determined by the assembly which inspects and super- 
intends the affairs of the whole Empire, and the pro- 
vincial affairs of each colony may still be regulated by 
its own Assembly. . . . Examples are not want- 
ing of Em^Dires in which all the different provinces 
are not taxed, if I may be allowed the expression, in 
one mass, but in which the sovereign regulates the 
sum which each jjrovince ought to pay, and in some 
provinces assesses and levies it as he thinks proper, 
while in others leaves it to he assessed and levied as 
the respective states of each province shall determine. 
In some provinces of France the king not only im- 
poses what taxes he thinks proper, but assesses and 
levies them in the way he thinks proper. Prom others 
he demands a certain sum, but leaves it to the states 
of each province to assess and levy that sum as they 
think proper. According to the scheme of tax 

1 Book 4, chap. 7, p. 201 of vol. 2 of J. E. Thorold Rogers's edition. 



( 69 ) 

ing by requisition the Parliament of Great Britain 
would stand nearly in the same situation toward the 
colonial assemblies as the king of France does toward 
the states of those provinces which still enjoy the priv- 
ilege of having states of their own, the provinces of 
France which are supposed to be best governed." . . . 
" The Parliament of Great Britain insists upon tax- 
ing the Colonies and they refuse to be taxed by a Par- 
liament in which they are not represented. They are 
very weak who flatter themselves that in the state to 
which things have come our colonies will be easily 
conquered by force alone. The persons who now issue 
the resolutions of what they call their Continental 
Congress feel in themselves at this moment a degree 
of importance which, perhaps, the greatest subjects 
in Europe scarce feel. From shopkeepers, tradesmen 
and attorneys they have become statesmen and legis- 
lators, and are employed in contriving a new form of 
government for an extensive empire which, they flat- 
ter themselves, will become, and which, indeed, seems 
very likely to become, one of the greatest and the most 
formidable that ever was in the world."^ Here it may 
be observed not only that requisitions were deemed 
taxation in England, but that the same kind of tax- 
ation, as opposed to taxation in the aggregate or " in 
one mass," existed in France, where the crown went 
further as to some provinces and administered the 
tax to the inhabitants of the provinces, assessing the 
quotas upon, and collecting them from them ; while 
in other instances assessment and collection was left 
to the " state of the provinces " to do by their own as- 
semblies. 

This method of raising revenue by requisitions for 
quotas from the constituent bodies was the funda- 
mental principle of the Confederation of the Swiss 
Cantons, United Provinces of Netherlands, and Ger- 
man Confederation.^ 

1 Wealth of Nations, pp. 203-4. 

2 Taylor's nistory of the English Constitution, vol. I. 



( 70 ) 

After the campaign around Saratoga, ending with 
the surrender of Burgoyne's army in October, 
'77, was known in England, late in '77, or early 
in '78, Parliament enacted 18 George III, Chap- 
ter xii, for the purpose of removing all doubts and 
apprehensions concerning taxation in North America. 
This act, reciting that whereas taxation by Parlia 
ment for raising a revenue in his Majesty's colonies, 
provinces and plantations in North America " has 
been found by experience to occasion great uneasiness 
and disorders among his Majesty's faithful subjects, 
who may, nevertheless, be disposed to acknowledge 
the justice of contributing to the common defense of 
the Empire, provided such contribution should be 
raised under the authority of the General Court or 
General Assembly of each respective colony, province 
or plantation " relinquished taxation in North Amer- 
ica, excepting only for the regulation of commerce, 
the net produce whereof should go to the colonies re- 
spectively. 

This partitioned taxation of the colonies was used 
among them as early as 1643, when by the Articles of 
Confederation forming what was known as " The 
United Colonies of New England," it was agreed that 
all charges and expenses of the Union " both in men, 
provisions and all other disbursements," should be 
borne by the members of the Confederation in pro- 
portion to the number of their male inhabitants 
between sixteen and sixty years of age ; each 
colony, however, taking its own course for 
raising its quota, rating its inhabitants ac- 
cording to their different estates, but with due allow- 
ance and exemption to persons of quality, etc. Here 
it may be observed that the rule or measure of the 
quotas of troops and of money of the several colonies 
was their numbers ; the quotas, being mostly of 
troops for the purpose of fighting the Indians, includ- 
ing only males between sixteen and sixty years of 
age. 



( 71 ) 

This rule of numbers the Continental Congress 
adopted when it came to provide for the re- 
demption of its bills of credit issued" to carry on the 
Eevolution ; and it partitioned its revenues to be 
raised into quotas, levying them upon the colonies, 
and then the states, separately. December 20, 1775, 
Congress resolved that the united colonies be pledged 
for redeeming the bills of credit, which it directed to 
be emitted ; that each colony provide ways and means 
to sink its proportion of said bills in manner most 
effectual and best adapted to its condition and cir- 
cumstances and mode of levying taxes: TJiat the 
proportion, or quota, of each respective colony be de- 
termined according to the number of inhabitants of 
all ages, including negroes and mulattoes in each col- 
ony . . . And that to this end the several assem- 
blies and conventions provide for laying taxes in their 
respective colonies toward sinking the Continental 
bills. A similar resolution was enacted yet earlier, 
on July 29, '75. Here observe the measure or rule of 
quotas was the whole number of inhabitants, includ- 
ing the negroes and mulattoes. At first the whole 
number of slaves was included in the rule of numbers. 

When the Articles of Confederation and Perpetual 
Union were agreed upon. Congress was given power 
to partition or apportion out on the states separately 
and raise therefrom all moneys required for the com- 
mon defense and general welfare, as well as troops of 
war. The eighth article runs as follows : " All 
charges of war and other expenses that shall be in- 
curred for the common defense or general welfare, 
and allowed by the United States in Congress assem- 
bled, shall be defrayed out of the common treasury 
which shall be supplied by the several states in pro- 
portion to the value of all land within each state, 
granted to, or surveyed for, any person, as such land 
and the buildings and improvements thereon shall be 
estimated, according to such mode as the United 
States in Congress assembled shall from time to time 



( 72 ) 

direct and appoint. The taxes for paying that pro- 
portion shall be laid and levied by the authority and 
direction, of the legislatures of the several states 
within the time agreed upon by the United States in 
Congress assembled." Congress acquired no power to 
lay taxes or duties throughout the United States by 
the Confederation, but the power to require quotas 
of taxes from the states was without limit. 

It will be observed that the measure or rule of 
quotas here is not as employed by the Continental 
Congress, that is the whole number of inhabitants in- 
cluding all negroes and mulattoes, but that this rule 
was relinquished in favor of the rule of the values of 
all lands within the states, granted or surveyed, with 
the buildings and improvements thereon. 

The I eason of the adoption of the rule of values here 
instead of numbers appears to be as follows : Jeffer- 
son's Notes of Debate on the Confederation,^ say that 
on Friday, July 12, '76, when the committee ap- 
pointed to draw the Articles reported them, it was 
provided tlierein that " All charges of war and all 
other expenses that shall be incurred for the common 
defense or general welfare, and allowed by the United 
States assembled, shall be defrayed out of the com- 
mon treasury which shall be supplied by the several 
colonies in proportion to the number of inhabitants 
of every age, sex and quality, excepting Indians, not 
paying taxes." Then it was moved that quotas should 
be fixed, not by number of inhabitants of every condi- 
tion, but by that of the " white inhabitants." J^ater 
it was proposed as a compromise, that two slaves 
should be counted as one freeman. August first, the 
question being put, the amendment providing that 
the rule should be white inhabitants only was rejected 
by the votes of New Hampshire, Massachusetts, 
Ehode Island, Connecticut, New York, New Jersey 
and Pennsylvania against those of Delaware, Mary- 
land, Virginia, North and South Carolina, Geor- 

1 Elliot's Debates, latest edition, vol. 1, p. 'iO; also Jefferson's Works, vol 1. 



( 73 ) 

gia being divided. The northern states rejected 
quotas according to white inhabitants, and the 
southern states would not have quotas according to 
the whole number of inhabitants, including negroes 
and mulattoes. Jefferson's Notes are too meagre to 
show why quotas were iinally measured according to 
values, but Madison's Journal of Debates states that 
on March 27, '83, Mr. Wilson, who, Jefferson's Notes 
show, was in Congress and took part in the debate 
on Art. 8 of the Confederation, said that the southern 
states would have agreed to the rule of numbers for 
quotas in preference to the rule of land values if half 
of their slaves only could have been included in the 
estimate, but the northern states would not concur in 
that proposition.^ The evidence is that the rule of 
^'alues was substituted for the rule of numbers of the 
Continental Congress only because it was impossible 
to reconcile the North and South as to the extent to 
which slaves should be included. 

The following extracts from the Journal evince 
Congress' view of their constitutional power to re- 
quire quotas from the states ; and also how in connec- 
tion with the quotas of taxes there frequently occurs 
the word direct doubly used, and meaning in one case 
the power of Congress to direct, in the other the 
power of the state legislatures to direct the same kind 
of taxation. January 4, '79, resolved " that a commit- 
tee of one member from each state be appointed to ap- 
portion the quotas of the taxes called for to be paid 
by the several states," for redeeming Continental bills 
of credit. February 9, '81, ordered that the Board of 
Treasury lay before Congress the " exact state of the 
taxes paid in by the respective states." May 22, '81, re- 
solved that the Treasury of the United States be di- 
rected to draw orders on the treasuries of the several 
states for tlieir quotas of |3,000,000, and that it is 
expected the states will severally direct their 
treasurers to accept those orders as soon as presented. 

T- Elliot's Debates, vol. 6, p. 79. 



( 74 ) 

October 1, '82, resolved tliat the several states be re- 
quired to make speedy payment of their respective 
quotas into the public treasury. October 18, '82, re- 
solved it be impressed on the states as absolutely nec- 
essary to lay taxes for their quotas of money for the 
United States separate from those laid for their own 
use, and to pass acts directing collectors to pay the 
same to such persons as Congress authorized. Octo- 
ber 21, '86 resolved unanimously, that the several 
states in the Confederacy be, and they are hereby re- 
quired, to pay into the Federal treasury on or before 
the first day of June, '87, their respective quotas of 
the sum, etc. And quotas are indexed as " direct 
taxes " in the Journal of Congress of 1782-1788,^ pub- 
lished in 1823. 

Upon the nature of the Articles of Confederation 
and Perpetual Union it is deemed fitting to quote here 
from opinions of Mr. Madison and Mr. Hamilton 
upon their binding nature in law since, not only were 
these gentlemen in agreement on this point, but at 
the time most of the statements were made the matter 
was not in controversy. 

In No. 38 of The Federalist Mr. Madison says 
( speaking during the time of the Congress of the Con- 
federation) : " The present Congress can make 
requisitions to any amount they please and the states 
are constitutionally bound to furnish them." In No. 
23 of The Federalist Mr. Hamilton says: •' Congress 
have the unlimited discretion to make requisitions of 
men and money. As their requisitions are made con- 
stitutionally binding upon the states who are, in fact, 
under the most solemn obligations to furnish the sup- 
plies required of them, the intention evidently was 
that the United States should command whatever re- 
sources were by them judged requisite to the common 
defense and general welfare." In No. 30 Mr. Ham- 
ilton says : " The present Confederation, feeble as it 
is, intended to repose in the United States an unlim- 

1 Vol. 4 of Journal of American Congress. 



( 75 ) 

ited power of providing for the pecuniary wants of the 
Union. Congress, by the articles which compose that 
compact, are authorized to ascertain and call for any 
sums of money necessary in their judgment to the ser- 
vice of the United States, and their requisitions, if 
conformable to the rule of apportionment, are, in 
every constitutional sense, obligatory upon the states. 
These have no right to question the propriety of the 
demand, no discretion beyond that of devising 
the ways and means of furnishing the sums de- 
manded." Again in No. 15 he says : " Except 
as to the rule of appointment the United States 
has an indefinite discretion to make requisi- 
tions for men and money, hut thep have no 
autJiority to raise either by regulations extend- 
ing to the individual citizens of America; the 
consequence of this is, that though in theory their res- 
olutions concerning these objects are laws constitu- 
tionally binding on the members of the Union, yet 
in practice they are mere recommendations whif'h the 
states observe or disregard at their option.'' Mr. 
Madison's Journal of Debates in the Congress of the 
Confederation says that on February 21, '83, ^Ir. 
Madison said in debate preceding the passing of the 
resolutions of April 18, '83, (to be referred to here- 
after) ihat he had observed through the procei'dings 
of Congress that the power delegated to Congress by 
the Confederation had been very differently cont^triied 
by different members, which difference of con- 
struction had materially affected their reason 
ings and opinions on several propositions made; 
that in particular it had been represented by 
sundry members, that Congress was but an ex- 
ecutive body, and he wished the true doctrine 
of the Confederation to be ascertained in or- 
der to removr embarrassment, and to that end would 
offer his ideas on the subject; and he continued, 
" That by the Articles of Confederation Congress had 
clearly and explicitly the right to fix the quantum of 



( 7B ) 

reyeni^e Jiecessary for the public exigencico, and to 
require the same from the states respectively in pro- 
portion to the values of the land. That the requisi- 
tions thus made were a law to the states as much as 
acts of the latter for complying with them were a law 
to their individual members. That the Federal Consti- 
tution was as sacred and obligatory as the internal 
constitutions of the several states, and that nothing 
could justify the several states in disobeying acts war- 
ranted by it but some previous abuse and infraction 
on the part of Congress. That as a proof that the 
power of fixing the quantum and making requisitions 
of money was considered as a legislative power over 
the purse, he would appeal to the proposition made 
by the British ministers of giving this power to the 
British Parliament, and leaving to the American as- 
semblies the privilege of complying in their own 
mode, and to the reasonings of Congress and the sev- 
eral states on that proposition. He observed further, 
that by the Articles of Confederation was delegated 
to Congress the right to borrow money indefinitely 
and emit bills of credit, which was a species of bor- 
rowing, for repayment and redemption of which the 
faith of the states was pledged, and their legislatures 
constitutionally bound." Again, Mr. Madison said 
about that time : " In fact Congress are already 
invested by the states with the constitutional power 

over the purse as well as the sword The 

requisition of Congress on the states for money is as 
much a law to them as their revenue acts when passed 
are laws to their respective citizens. If for want of 
the faculty or means of enforcing a requisition the 
law of Congress proves inefficient, does it not follow 
that in order to fulfill the views of the Federal Con- 
stitution such a change should be made as will render 
it efficient? Without such efficiency the end of this 
constitution, which is to preserve order and justice 
among the members of the Union, must fail, as with 
out a like efficiency would the end of state constitu- 



( 77 ) 

tions, which are to preserve like order and justice 
among their respective members."^ ^ 

But the states did not comply with the requisitions 
of Congress by paying their quotas of taxes, and the 
United States being heavily in debt for the Kevolu- 
tion, with creditors pressing upon it, yet still requir- 
ing more funds, on April 18, 1783, Congress passed the 
resolutions afterwards so frequently referred to in the 
convention of '87 as the resolutions of April 18, '83.^ 
These resolutions looked to the amendment of the Ar- 
ticles of Confederation, the National Constitution, 
so-called, recommending to the states, among other 
things, to establish and appropriate to the United 
States substantial and effectual revenues for supply- 
ing their respective proportions of |1,500,000 annu- 
ally, to be collected by persons who, though they 
should be appointed by the states, should be amena- 
ble to, and removable by. Congress. Here Congress 
sought to control the collection of the quotas of the 
states. The same resolution further provided that, 
as a more convenient and certain rule of ascertaining 
the proportions to be supplied by the states to the 
common treasury, the following alteration in the Ar- 
ticles of Confederation and Perpetual Union was 
agreed to in Congress, and the several states were 
advised to authorize their delegates to ratify the same 
as follows : " That Article VIII of the Confedera- 
tion is revoked and made void, and in place thereof it 
is declared that charges and expenses incurred for the 
common defense and general welfare and allowed by 

1 Elliot's Debates, vol. 5, pp. 36-7. 

2 " Congress, by virtue of this delegation, estimates the expense and appor- 
tions it out to the several parts of the empire according to their several abilities ; 
and here the debate must end, because each state has already had its voice, and 
the matter has undergone its whole portion of argument, and can no more be 
altered by any particular state, than a law of any state, after it has passed, can 
be altered by any individual. For with respect to those things which immed- 
iately concern the Inion, and for which the Union was purposely established, 
and is intended to secure, each state is to the United States what each indi- 
vidual is to the state he lives in. And it is on this grand point, this movement 
upon one center, that our existence as a nation, our happiness as a people, and 
our safety as individuals depend." (From The Crisis, No. 11, by Thomas Paine). 

3 They are set out at large in Elliot's Debates, vol. 1. 



( 78 ) 

the United States in Congress, should be defrayed 
out of a common treasury to be supplied by the states 
in proportion to the whole number of white and other 
free citizens and inhabitants, and three- fifths of all 
other persons not comiDrehended in the foregoing, ex- 
cept Indians not paying taxes, which number shall 
be triennially taken and transmitted to Congress in 
such mode as they shall direct and appoint." On the 
passage of these resolutions of April 18, '83, the ayes 
and nays being called, twelve states being present 
(Georgia not), ten states voted " Aye," Rhode Island 
voted " ^ay," New York divided. New York was 
divided because Mr. Hamilton voted Nay, his reason 
being, probably, considering his position throughout, 
that the resolutions did not go far enough. Rhode 
Island's reasons related, probably, to provision for 
duties to be laid throughout the United States on im- 
ports (to be referred to later), so that on this recur- 
rence to the rule of numbers as the rule of quotas, it 
seems probable Congress was practically unanimous. 
By this latter provision Congress sought to return 
to the rule employed for quotas prior to the Confeder- 
ation, the rule of numbers ; but whereas the rule for- 
merly included all negroes and mulattoes, it was now 
agreed that but three-fifths of the slaves should be in- 
cluded; they being referred to not as slaves, but as 
" persons not comprehended in the foregoing " de- 
scription. 

The reasons of the relinquishment of the rule of the 
values of land and the recurrence to the rule of num- 
bers, are stated in Mr. Madison's Journal of Debates, 
as follows ■} January 8, 9, and 10, '83, show that Mr. 
Hamilton and Mr. Madison were of opinion that the 
Tule was a chimerical one since where the interven- 
tion of the individual states occurred their interests 
biased their judgments, or, at least, suspicions of such 
bias would prevail, and without their intervention the 
rule could not be executed but by inadmissible ex- 

1 Elliot's Debates, vol. 5. 



( 79 ) 

pense, delay and uncertainty ; and it Avould, perhaps, 
be preferable, therefore, to recommend an exchange 
of this rule for one more simi)le, easy and equal. Jan- 
uary 14 is shown the general strong impression of the 
committee having the matter in charge, of the diffi- 
culty, inequality and impracticability of the rule of 
values, with their preference for the rule of numbers, 
and also the advocacy by members of the substitution 
of the latter rule for the former. March 27 is shown 
opinions of many members favoring the substitution 
of the rule of numbers for the reasons before set out, 
particularly that valuations would always be the sub- 
ject of contentions among the states. Accompanying 
the resolution of April 18, '83, in its submission to 
the states for ratification, was an address by Congress 
to the states stating •} " The last object recom- 
mended is a constitutional change of the rule by 
which the partition of the common burdens is to be 
made. The expediency and the necessity of such a 
change have been sufficiently enforced by the local in- 
justice and discontents which have proceeded from 
valuations of the soil in every state where the experi 
ment has been made, etc." ..." This rule, tho' 
not free from objections, is liable to fewer than any 
other that could be devised. The only material diffi- 
culty which attended it in the deliberations of Con- 
gress was to fix the proper difference between the labor 
and industry of free inhabitants and of all other in- 
habitants." Thus the rule of numbers was restored 
for its practicality, because it could not be evaded, 
compromise being reached upon the inclusion of the 
slaves. It is noteworthy that there is no sugges- 
tion anywhere that the quotas of revenue — or of 
troops — should be equal, although in the Confedera- 
tion the states had the right of representation as 
equals, that is, according to the view of Unionists, as 
equal parts of the whole. Taxation in the Confedera- 
tion was not according to the same rule as representa- 

1 Elliot's Debates, vol. 1. 



t 80 ) 

tion. Jefferson's Notes of Debates in the Confedera- 
tion show that much consideration was given, 
however, to the proposition that the states should be 
represented in Congress in proportion to their num 
bers, that is their population; that they should have 
suffrage therein, not as equals, as equal members of 
the Union, but as proportional members of the Union.' 

These resolutions of April 18, '83, also show the at- 
tempt to obtain for Congress power to lay duties all 
one and undivided or united throughout the Union. 
xi former resolution of February 3, '81, recommending 
the investment of Congress with power to levy cer- 
tain duties on imports and also on prizes condemned 
in Admiralty, not having been ratified by the states, 
was now again insisted upon, it being recommending 
to the states as indispensably necessary that Congress 
should have power to levy duties on imports, the col- 
lectors of which, though appointed by the states, 
should be amenable to, and removable by Congress. 

It was during debate preceding these resolutions of 
April 18, '83, that motion having been made looking 
to Congress acquiring power to lay taxes throughout 
the Union, which were called Continental taxes, or 
general taxes,^ or collective taxes, as distinguished 
from apportioned taxes, sometimes called individual 
taxes, that Mr. Madison's Journal tells us:^ 
" Mr. Hamilton went extensively into the subject; the 
sum of it was as follows : he observed that funds con- 
sidered as permanent sources of revenue were of two 
kinds ; first, such as would extend generally and uni- 
formly throughout the United States, and would be 
collected under the authority of Congress; secondly, 
such as might be established separately within each 
state, and might consist of any objects chosen by the 
states, and might be collected either under the author- 
ity of the states or of Congress." 

^ Elliot's Debates, vol. 1; Jefferson's Works, vol.1; and Mr. Madison's Jour- 
nal, June 11, 1787; Elliot's Debates, vol. 5, p. 181. 

2 See Resolutions of Congress, Feb. 15, 1786, vol. 4, pp. 618, 619, 620; also April 
21, 1781. 

3 Page 33. 



( 81 ) 

This quotation from Mr. Hamilton is not made be- 
cause lie said it, or because Mr. Madison summed it 
up, reporting it, but merely in illustration, as a fine 
analysis of the power of taxation later conferred upon 
Congress in forming more perfect union. Here are 
the features of the revenue power of a republic rear- 
ing herself upon her many states in process of becom- 
ing a perfect union. Funds considered as permanent 
sources of revenue, or in other words, the power of the 
purse, or the power of taxation being of two kinds, 
(1) such as would extend generally and uniformly 
throughout the Union and be collected by authority of 
Congress, (2) such as might be established separately 
in each state on any objects chosen by the state, and 
might be collected by authority of the states or by 
Congress : the first kind is determinate, it being said 
what wotdd be; the second kind is indeterminate, it 
being said what might be. Each has three particulars, 
the first kind being determinate in respect that the 
funds (1) extend throughout the United States, (2) 
are uniform, and (3) are collected by authority of 
Congress; the second being indeterminate in respect 
that, (1) the funds might be established separately in 
each state, (2) might be from objects chosen by the 
states, (3) might be collected by the states or by Con- 
gress. The first kind denotes the determination of 
union in all respects, taxes extending throughout it on 
the same subject matter uniformly, and collected by 
authority of Congress; and the second denotes the in 
determination of union, the doubt of the supremacj 
of the states or the Union, taxes being drawn sepa- 
rately from each state, whereby they might be held 
or controlled by the states in their treasuries, or by 
Congress in the national treasury, and both assess 
ment and collection might be by the states or by Con- 
gress. 

It may be observed here that from the nature of 
things it would appear that all empires, republics or 
nations arising from their constituent bodies or coin- 



( 82 ) 

ponent members, as England upon her shires or 
counties, France upon her states of the provinces, 
Kome from her provinces, will give evidence of it in 
the history of their revenues as well as of their troops 
of war ; that at first these are separate contributions 
from the several local governments, who call them 
voluntary and assess them upon, and collect them 
from their inhabitants themselves ; but, as the power 
of the nation becomes suj)reme, this voluntary contri- 
bution becomes involuntary tribute, derived still from 
the component bodies, provinces or states, as it must 
be, but in either of two modes or ways ; first, in man- 
ner as before as near as may be, by the money or 
troops to be raised being partitioned or apportioned 
out in accordance with the partitions between the sev- 
eral component members into shares or quotas, which 
are gross quantities of money or troops, one quota 
being laid or charged to or upon each constituent 
member ; and requisition therefor may be directed to 
its governmental authorities, who are then to admin- 
ister it to the inhabitants, assessing it upon their 
property or persons and collecting it therefrom; or 
the national legislature may itself, as an additional 
measure, administer the quotas to the inhalutants of 
the provinces or states and make the assessment and 
collection. The other way is for the national legis- 
lature to disregard its members and all partitions 
between them, and without apportioning the revenues 
or troops to be raised, to levy and colled them 
throughout the Union as one undivided or united body 
politic or state. 

Either mode of deriving tribute obtains it from the 
component members of the Union, which can derive 
its resources only from its members, being composed 
of them, but the former method acts upon them as 
political beings such as first made voluntary contribu- 
tions, making them the object of its imposition, while 
the latter method ignoring them as political beings 
and going through them all as one constituency 



( 83 ) 

strikes at each member only in effect or by conse- 
quence. One mode is direct, the other consequential. 

Prior to the convention of 1787 the resolutions of 
Congress of April 18, '83 never having been ratified, 
Congress had no power to levy taxes save on the 
states, and no power to administer the quotas of the 
states to their inhabitants by assessing and collecting 
them therefrom. Moreover, the change of the rule of 
quotas from values to numbers may have remained 
unconfirmed, though the report of the Secretary of 
Congress of January 4, '86, is said to show eight states 
had then ratified the amended eighth article, on 
quotas.^ 

Proceeding to the convention of 1787, the Virginia 
plan, the convention in committee of the whole, the 
Jersey plan, and the convention all resolved that the 
national legislature should have the legislative rights 
vested in Congress by the Confederation. This neces- 
sarily carried power to require quotas of money, as of 
troops, from the several states. 

Moreover — to repeat somewhat — the Virginia plan 
proposed that the representation from the states or 
their suffrage in the first branch of the national legis- 
lature should be either according to their quotas of 
contribution, or their numbers of free inhabitants, 
and that the rule should obtain in both branches. By 
this proposal that the states should be represented in 
proportion as they contributed, the Virginia plan ex- 
pressed the principle of the British constitution which 
caused the Revolution, the principle that representa- 
tion and taxation of the members of the empire should 
go hand in hand, and be proportioned the one accord- 
ing to the other; and proposing, in the alternative, 
the number of free inhabitants as the rule, the plan 
implied that rule of quotas which was the alternative 
of the number of free inhabitants, the rule of the num- 
ber of free inhabitants and three-fifths of all others, 
the rule of the Confederation amended, as aforesaid. 

1 See Jeflerson's Works, vol. 1. 



( 84 ) 

If the first alternative were accepted, the ]3riuciple of 
the Eevolution, of representation of the members of 
the Union according to their taxation, and the rule 
of the Confederation amended, the rule of the whole 
number of free inhabitants and three-fifths of all 
others, would be adopted; if the second alternative 
were accepted both the principle and the rule would 
be denied. The convention in committee of the whole 
accepted the first alternative, adopting both the prin- 
ciple and the rule, but expressing only the rule, the 
principle being only implied; resolving that repre- 
sentation from the states should be not as in the Con- 
federation, but according to the whole number of free 
inhabitants and three-fifths of all others, in the first 
branch of the national legislature, and in the second 
branch the same. The convention in convention fol- 
lowed the committee of the whole as to the first 
branch, but expressed both the principle and the rule, 
it is submitted, in its resolution that representation 
should be according to direct taxation in the first 
branch, censuses to be taken from time to time accord- 
ing to the rule of the resolution of April 18, 1783, the 
rule of the Confederation amended, and both direct 
taxation and representation to be jproportioned ac- 
cordingly; but they resolved that in the second 
branch of the legislature each state should have equal 
vote, and all bills for revenue should originate in the 
first branch, and not be altered or amended hj the 
second. 

By the Jersey plan representation from the states 
was not to be according to their contributions, — in the 
single chamber of legislation of this plan, — the prir- 
ciple of the Revolution was not followed, but repre- 
sentation was to be as in the Confederation, the 
several states having equal suffrage; but contribu- 
tions from the states were to be according to the 
Confederation amended, the whole number of free in- 
habitants and three-fifths of the slaves. This plan 
putting taxes to the front, — immediately after the 



( 85 ) 

resolution for revising the Articles of Confedera- 
tion — recognized in two jDaragraphs two kinds of tax- 
es, those extending througliout the Union, and those 
ajDportioned to the several states; offering in one 
paragraph to confer on Congress authority to raise 
revenue by import duties, by stamp duties on paper, 
vellum, and parchment, and by postage, and to make 
rules — not to direct collection, for the word " direct " 
is never used in reference to unapportioned taxes — 
for the collection thereof ; and in the other paragraph 
olfering that the rule of quotas of contribution — the 
right to which it conferred in the provision that Con- 
gress should have the legislative rights vested in Con- 
gress by the Confederation- — should be as agreed upon 
by the resolution of April 18, 1783, and with power 
in Congress to direct collection in non-complying 
states, and to 'pass acts directing the same.-*^ 

Now, it appearing that taxes are of two kinds both 
inherently and historically, those apportioned or par- 
celled out to or on the constituent bodies or compo- 
nent members separately, and those extending one and 
undivided throughout them all united, it is considered 
that the former are direct taxes for the following 
reasons : The former are taxes to and upon the several 
members directly, the latter only indirectly or conse- 
quentially ; the former are proportioned according to 
representation from the constituent bodies by the 
British constitution, the denial whereof to the several 
colonies and the assertion of the right to tax them 
without representation — both kinds of taxes being at- 
tempted — brought on the Revolution ; and new union 
being formed of America wherein the several colonies 
acquired the representation denied to them by the 
United Kingdom and became represented equally, 
Congress exercised, and by the Confederation and 
Union acquired the right to taxes of the former kind 
from the several states as constituent members, the 
rule or measure being at first the whole number of 

1 Resolutions 2 and 3. 



( 86) 

inliabitants including slaves, and later by amend- 
ment of the Confederation the number of free inhab- 
itants and three-fifths of the slaves — thus compromis- 
ing the interests of the North and the South ; and more 
perfect union coming to be formed the Virginia plan, 
the committee of the whole house, the Jersey plan 
and the convention in convention all agreed in con- 
ferring on the national legislature the power Congress 
had by the Confederation to levy taxes of the former 
kind from the several states ; then the Virginia plan 
proposed representation according to either the 
quotas of contribution or the numbers of free inhabi- 
tants, thus on the one hand pursuing the principle of 
the Revolution and the amended rule of the Con- 
federation, or on the other hand denying both; the 
committee of the whole accepted the first alternative ; 
then the Jersey plan proposed representation as in the 
Confederation by the states equally, and furthermore 
proposed the two kinds of taxes aforesaid, the former 
kind according to the amended rule of the Confedera- 
tion; then the convention in convention resolved 
unanimously that representation should be according 
to direct taxation, and both according to the rules of 
the Confederation amended, but compromised with 
the Jersey plan by conceding representation in the 
second branch as in the Confederation. Finally di- 
rect taxes appear by authorities on the British 
constitution to be taxes on the several constituent 
bodies, the counties of England.^ 

Such would appear to be the primary meaning of 
direct taxes. But there appears a secondary meaning 
of great practical importance in the convention. As 
will be observed later, and as has always been recog- 
nized, the most important power conferred on the na- 
tional legislature by the convention was power to ex- 
ecute and administer the power formerly vested in 
Congress by the Confederation. By this Congress 
might administer the quotas of the several states to 

1 Gneist's History of the English Constitution, vol. 2, p. 4; and Blackstone 
says direct taxes are assessed on the counties — book 1, chap. 8. 



( 87 ) 

the people thereof, assessing the amounts upon and 
collecting them from them, whereby the money would 
go directly into the treasury of the United States, in- 
stead of through and by. way of the states' treasuries 
as in the Confederation ; and such was the practical 
necessity of this power to the Union that this second- 
ary meaning was perhaps the better recognized. Mon- 
tesquieu applies the word " direct " to the administra- 
tion of taxes apportioned on constituent bodies in 
speaking of quotas to the provinces assessed upon and 
collected from their inhabitants by the Roman em- 
pire. " By this," he says, " the public money passes 
through few hands, goes directly to the treasury " 
and makes quicker return to the people.^ And Black- 
stone says direct taxes are apportioned out to the 
counties or shires of England, then assessed on their 
inhabitants, their real and personal property, the 
usual form being the land-tax, but with poll-taxes at 
times.2 Moreover, as observed from Adam Smith, 
France apportioned out taxes to the provinces in con- 
trast to taxing them " in one mass," deriving the prac- 
tice from the Roman empire which did the same, first 
making requisitions for quotas to the provinces, but 
later administering the quotas to the inhabitants 
thereof, such taxes being called direct taxes.^ 

But, as will be observed later, the Jersey plan was 
framed upon the theory that the United States was 
supreme over the several states only within limits 
set ultimately by the several states, whereof the conse 
quence would be that the several states would be re- 
ally and in truth, because ultimately, supreme over 
the United States. According to this theory the con- 
tributions of the several states to the United States 
would be but voluntary contributions which the 
United States in Congress assembled had the right 

1 Montesquieu's Spirit of Laws, book XIII, cliap. 19, Pritchard's edition, 
vol. 1, p. 236. 

2 Black. Com., book 1, chap 8, p. 313. 

3 The Decline and Pall of the Roman Empire, by Edward Gibbon, first publi- 
cation 1776; 1782-3; ch. 17; Victor Duruy's History of Rome, Ripley and Clarke's 
translation, vol. 6, p. 252; vol. 2, p. 239. 



( 88 ) 

only to " direct and appoint " by the Confederation, 
and which by the Jersey plan Con greets won Id in ad- 
dition only direct the collection of in non-complying 
states, and pass acts directing the same. Such would 
appear to be the interpretation of the Jersey plan. 

So direct taxes might be construed in either of two 
ways, according to the Virginia plan, the resolutions 
of the convention in committee of the whole and in 
convention, that is for the supremacy of the United 
States on the one hand, or according to the Jersey 
plan and the ultimate supremacy of the several states 
on the other. This aptitude to either interpretation 
denotes the indeiiniteness or the indeterminateness of 
union of the former analysis by Mr. Hamilton, and ac- 
cords with the alternative nature of the constitution 
throughout, as will appear later. According to the 
former interpretation direct taxes would be those ap- 
portioned to the several states, being contributions 
from them severally and directly, instead of from 
them indirectly or consequentially, as in the case of 
taxes or duties extending throughout the United 
States ; and moreover Congress might administer the 
quotas to the inhabitants, assessing them upon and 
collecting them therefrom, whereby they would flow 
directly into the treasury of the United States. But 
by the latter interpretation direct taxes, though ap- 
portioned to the several states, were but voluntary 
contributions from them, which Congress might di 
rect and appoint, and direct collection of in non-com- 
plying states, and pass acts directing the same. 



THROUGH THE CONSTITUTION IN BLOCK. 



Recurring to the comparison of the resolutions of 
the convention — as to the executive, the Virginia 
plan proiDOsed that a national executive be instituted 
to ';e chosen by the national legislature for a term of 
years, with fixed compensation, and to be ineligible a 
second time; who besides enjoying the executive 
I'ights vested in Congress by the Confederation should 
have general authority to execute the national laws.^ 

This resolution the committee of the whole adopted, 
with the addition that the executive should be a single 
person, his term seven years, and that he should 
be removable by impeachment. The executive 
rights vested in Congress by the Confederation being 
included in the general authority to execute national 
laws, expression of the former was omitted ; but par- 
ticular authority was conferred to appoint to offices 
in cases not otherwise provided for.^ The convention 
sitting in convention adopted the resolution from the 
committee of the whole.^ This was according to the 
constitutions of Great Britain and of the several 
states, yet developing the executive out of the presi- 
dency in the Confederation, Blackstone calls the 
crown an executive consisting of a single person, with 
general authority to execute the laws.^ So it was 
with the governors and presidents of the several 
states; and among the powers of the executive were 
the executive powers vested in Congress by the Con- 
federation, including power to make appointments to 
offices. In the Confederation Congress chose the pres- 

1 Resolution 7. 

2 Resolution 9. 

3 Resolution 12. 

■* Black. Com., Introd., sec. 2, and book 1, chap. 7. 



( 90 ) 

ident ; of course the Britisli executive was hereditary^ 
yet Parliament apj)ointed William and Mary, thus 
establishing the right to regulate the succession in ex- 
traordinary emergencies such as then occurred; and 
prior to that, Henry IV confirmed his title by act of 
Parliament.^ The abrogation of the British principle 
of heredity and the substitution of election by the 
people by their representatives was the main differ- 
ence between monarch^' and republicanism ; the other 
being the abrogation of the principle of heredity and 
the substitution of the principle of election by the peo- 
ple by their representatives in the upper house of 
the legislature. 



The Virginia plan proposed that the executive and 
a given number of the judiciary form a council to re- 
vise all acts passed by the national legislature be- 
fore their operation, both those enacting national 
laws and those negativing state laws, and that the dis- 
sent of this council should amount to a rejection of 
the acts unless again passed by the national legisla- 
ture by a given number of each branch.^ The con- 
vention in committee of the whole, omitting the judi- 
ciary from the revision, committed it wholly to the 
executive, and inserted two-thirds as the number of 
each branch of the national legislature to be required 
to pass acts over the executive negative, or veto; pro- 
viding that the executive might negative all acts of 
the national legislature — both those enacting na- 
tional la^it'S and those negativing state laws — not 
again passed by two-thirds of each branch of the na- 
tional legislature.^ The convention sitting in con- 
vention adopted the same by unanimous vote.* The 
council of the executive from the judiciary appears 
to have answ^ered to the council from the judiciary to 
the British executive set out by Blackstone among 

1 7 Henry IV, chap. 2. 3 Resolution 10. 

2 Resolution 8. 4 Resolution 13. 



(91 ) 

the executive councils, but it was not adopted, the 
executive Being strengthened by the " veto power,'- so 
called, to himself alone. According to Blackstone, 
the British executive had an absolute negative on the 
acts of Parliament;^ yet it appeared in convention 
that this negative had not been exercised since the 
revolution of 1688 ; and the negative subject to two- 
thirds of each branch of the legislature was pursuant 
to the constitution of New York,^ which was the lat- 
est made among the constitutions of the several 
states, and had restored, most nearly, the executive 
power which prevailed in the colonies before the 
abuses of the crown and the crown governors aroused 
that jealousy of the executive power which is shown 
in the earliest state constitutions. 



As4o the judiciary the Virginia plan proposed that 
a national judiciary be established to consist of a su- 
preme tribunal and inferior tribunals, to hold their 
oi^ces during good behavior, Avith compensation fixed 
and not subject to diminution during their term ; and 
jurisdiction of piracies and felonies on the seas, 
captures from an enemy, cases where foreigners or 
citizens from other states applying to such jurisdic- 
tion should be interested, cases respecting collection 
of national revenue, impeachments of national officers 
and questions involving the national peace and har- 
mony.^ 

The committee of the whole adopted the proposal of 
the Virginia plan as to the supreme tribunal, adding 
that it should be chosen by the second branch of the 
legislature, and omitting certain clauses of the juris- 
diction, to-wit: piracies and felonies on the seas, cap 
tures from an enemy, cases of foreigners and citizens 

1 Black. Com., book 1, p. 154; 261-2. 

2 But there the Council to the Governor assis-ted in the negative. 

3 Resolution 9. It is noticeable here that in the recital of the Virginia plan 
in Mr. Madison's journal of the debates of the convention it is added that it 
was proposed therein that the judiciary should be chosen by the national legis- 
lature; but that provision is not in the recital of the plan in the official journal. 



( 92 ) 

of other states as aforesaid; and, as to inferior tri- 
bunals, providing that the national legislature should 
be emi)owered to appoint them.^ The convention sit- 
ting in convention adopted the same, save that it was 
resolved as to the jurisdiction of the supreme tribunal 
that it should extend to cases arising under laws 
passed by the general legislature and to questions in- 
volving national peace and harmony.^ 

Here the judiciar^^ corresponds to that of England 
and the several states in respect of the supreme tri- 
bunal, their independency, and their jurisdiction, yet 
it is developed out of the judiciary of the Confedera- 
tion ; for by the Confederation jurisdiction was exer- 
cised in cases of piracies and felonies on the seas, and 
cases of captures from an enemy- — and courts of the 
Confederation were appointed by Congress — and the 
other cases added, respecting collection of national 
revenue and where foreigners and citizens of pther 
states were interested, Avere particularly required at 
that period, as will later be observed. But jurisdic- 
tion extending to cases arising under laws passed by 
the general legislature and to questions involving na- 
tional peace and harmony was a general jurisdiction, 
including, it may be submitted, the particular cases 
omitted, their omission at this time being, it 
would appear, for that reason. Blackstone speaks 
of the court of king's bench as the supreme 
court. It had jurisdiction of all civil and crim- 
inal cases — though of course only at law, equity 
jurisdiction being exercised by other courts. 
Jurisdiction of questions touching the national 
peace and harmony was later omitted, hut it 
would appear to be pursuant to the legislative power 
conferred in cases where the states were separately 
incompetent or their individual legislation would in- 
terrupt the harmony of the Union. As to the inde- 
pendency of the judiciary, the provisions for term of 
offlce during good behavior, with compensation not 

1 Resolutions 11, 12, and 13. 2 Resolutions 14, 15, and 16. 



( 93 ) 

subject to diminution, arose in England, appearing 
thence in the constitutions of tlie several states, as has 
been observed; and it is noteworthy that thes- pro- 
visions for the independence^ of the judiciary were 
considered in convention se]3arate from all others and 
so passed unanimously.^ 



The next resolution, the Virginia plan, the resolu- 
tions of the convention in committee of the whole and 
again in convention all contained : Resolved that 
provision ought to be made for the admission of new 
states lawfully arising within the limits of the United 
States, whether from a voluntary junction of govern- 
ment and territory, or otherwise, with the consent of 
a number of voices in the national legislature less 
than the whole.^ It is considered here that by " limits 
of the United States " is meant the limits of America, 
the United States being the United States of America, 
and the reasons for this will now be set out, only re- 
marking in addition that provision for the admission 
of new states was pursuant to the Confederation as 
evidenced by the ordinance of 1787 enacted by Con- 
gress for the government of the territory northwest of 
the river Ohio, July 13 of that year ; and also b}- the 
resolutions of Congress respecting the admission of 
Kentucky : for June 2, 1788, Congress in committee of 
the whole resolved upon the erection of Kentucky as a 
state and its admission into the Union " in mode con- 
formable to the Articles of Confederation ; " but later, 
July 3d, 1788, the Constitution having been ratified. 
Congress resolved that the admission of Kentucky 
ought to be under the new government. 

1 July 18th. 

2 Virginia plan, resolution 10, committee of the whole, resolution It, con- 
vention in convention, resolution 17. It will be observed that the phrase 
"limits of the United States" appears also in other places; see resolution 8 of 
resolutions of convention in convention and article 4, section 4, of the first draft 
of the Constitution. 



( 94 ) 

In inquiring what are the limits of the United 
{States^ within the meaning of the above resolutions 
of the convention it will be observed that by this must 
be meant the limits of the United States or the limits 
of the Union in law rather than in fact at that or any 
other time, that is to say the limits according to the 
design and plan and purpose of the Union, in a word 
the constitutional limits of the Union, for such only 
were within the consideration of the convention. The 
constitutional limits of the Union must lie beyond 
the then present actual limits because within the ac 
tual limits of the Union there could be no further 
junction of territory or of government, voluntary or 
otherwise. The actual limits, or the actual dimen- 
sions of the Union at the time of the adoption of the 
constitution are stated by Mr. Madison in The Feder- 
alist, No. 14, his statement serving to contrast the 
actual limits with the constitutional limits. He there 
says " that we may form a juster estimate . 
let us resort to the actual dimensions of the Union. 
The limits as fixed by the treaty of peace with Great 
Britain are : on the east the Atlantic ; on the south 
the latitude of 31 degrees ; on the west the Missis- 
sippi ; on the north an irregular line running in some 
instances beyond the 45th degree, in others falling as 
low as the 42d degree." Government for most of 
this territory was provided by the ordinance of 1787. 

To consider the limits of the Union according to its 
design and plan : in the British statutes the colonies 
of Great Britain were mentioned as the colonies, prov- 
inces and plantations in North America, or in North 
America and the West Indies. 

Thus, the act of Parliament 18 George III, page 
12, (1778), was entitled, " An act for removing doubts 
and apprehensions concerning taxation by the Parlia- 
ment of Great Britain in any of the colonies, prov- 
inces and plantations in North America and the West 
Indies." Accordingly on the assembling of the Con- 

1 From an article by the writer on the Limits of the Union. 



( 95 ) 

tinental Congress at Philadelphia, September 5, 
1774, the first entry in the Journal was: The dele- 
gates '^ chosen and appointed by the several colonies 
and provinces in North America to meet and hold a 
Congress " assembled, etc. From this time until they 
assembled under the Articles of Confederation and 
Perpetual Union, Congress was always called " The 
Continental Congress," or " The American Congress," 
for the reason, it may be submitted, that they were 
legislating for the continent, or for America. The 
official title of the Journal is, " The Journal of the 
American Congress." 

From the Journal it appears that Congress sought 
to unite all the British colonies in America ; thus, 
October 21, '74, Congress resolved upon preparing ad- 
dresses to Nova Scotia, St. Johns, East and West 
Florida. October 26, '74 Congress issued an address 
to the inhabitants of the province of Quebec appeal- 
ing to them to unite with the others. April 8, '75, and 
March 20, '76, instructions were given commissioners 
sent to Canada to treat for adopting " the people of 
Canada into our Union as a sister colony, with the 
same general system of laws as the other colonies, 
with only such local differences as might be agreeable 
to the people of each colony respectively." July 25, 
'75, an address was issued to the Assembly of the 
Island of Jamaica. November 22, '75, Congress pro- 
vided for supj)lying the people of the Bermuda 
Islands with provisions, they " seeming friendly to 
the cause of America," and suffering from the non 
exportation agreement of those colonies which had 
already united. 

A reason for the British West Indies not uniting 
is indicated by the statement of Lord John Sheffield 
in his Observations on the Commerce of the American 
States, published shortly after this, wherein he says/ 
writing, of course, from the English point of view: 
^' Our islands if declared independent could not pro- 

1 Page 188. 



( 96 ) 

tect themselves, nor is there a probability that the 
American states will have a navy sufficient for the 
purpose." But though Congress may not at that time 
have been able to command a navy sufficient for the 
purpose of establishing the independence of the West 
Indies, yet November 28, '75, they adopted rules for 
the regulation of the " navy of the United Colonies of 
North America." July 6, '75, Congress issued an ad- 
dress to the inhabitants of Great Britain entitled, 
" The Declaration of the Kepresentatives of the 
United Colonies of North America." 

It is in the second Continental Congress on May 16, 
'75, that there appears of record for the first time the 
conception of United America. On that date Con- 
gress resolved itself into a committee of the whole 
house " to consider of the state of America^ After 
that time the Journal shows that Congress went fre- 
quently into a committee of the whole house to con- 
sider of the " state of America." May 10, '76, Congress 
recommended to the assemblies, or conventions, in 
the several colonies, to set up such governments as 
should, in the opinion of the representatives of the 
people, be deemed most conducive to the happiness 
and safety of " their constituents in particular and 
America in general." Here it is observable that Con- 
gress considered the several colonies as particular 
constituents of America in general, as the quotations 
show they sought to consider Canada, Jamaica, Ber- 
mudas, etc. 

July 4, '76, the word '' states " appears for the first 
time ; it is no longer the United Colonies, but the 
United States; and it was never the United States of 
North America, but the limitations implied in the 
word " North " were dropped finally and thenceforth 
the name and style of the new power is the United 
States of America ; the Declaration of Independence 
is by Congress styling themselves " We, the represen- 
tatives of the United States of America, in general 
Congress assembled." 



( 97 ) 

Though Congress did not seek to unite as states 
and absolve from allegiance to the old world any but 
the British colonies in America, there is evidence that 
at the visry date of the Declaration of Independence 
they anticipated the time when Spain and France 
would be stripped of their colonies in America, they 
to be embraced in the Union; but manifestly this 
would not be proclaimed to the world at a time when 
Spain and France were sought as allies with whom 
to establish independence of Great Britain; and 
France made treaty of alliance with the new power 
at once. Yet Mr. Jefferson, — who it is needless to re- 
call wrote the Declaration, — writing out the debates 
in Congress of the time of the Declaration of Inde- 
pendence, says that it was therein declared on June 
8, 1776, " that France and Spain had reason to be 
jealous of that rising power which would one day cer- 
tainly' strip them of all their American possessions." 
And some time later Mr. Jefferson, in a letter from 
abroad, wrote " Our confederacy must be viewed as 
the nest from which all America, north and south, is 
to be peopled."^ Perhaps President Jefferson bore in 
mind the limits of the Union when he assumed to 
make the Louisiana purchase, for there, indeed, the 
only question would appear to be, not whether the 
government might acquire, but which department of 
the government, the executive or the legislative, 
should make the acquisition; still, in the meantime, 
Mr. Jefferson had gone with the states' rights party. 

November 15, 1777, the Articles of Confederation 
and Perpetual Union were agreed upon in Congress, 
the preamble reciting the making to be in " the second 
year of the independence of America ; " and likewise 
the ratification is stated to be in " the third year of 
the independence of America." Article I is " The 
style of this Confederacy shall be the United States 
of America." Article XI is " Canada acceding to this 
Confederation and joining in the measures of the 

1 Jefferson's Works, vol. 1, pp. 11, 438. . 



( 98 ) 

United States shall be admitted into, and entitled to 
all the advantages of this Union ; but no other colony 
shall be admitted into the same unless such admission 
be agreed to by nine states." By the phrase " no 
other colony " would aj)pear to be meant no other col 
ony in America, although no doubt reference was had 
particularly to British colonies. 

The convention of 1787, according to the Journal, 
went into committee of the whole house every day un- 
til the work of the committee was done " to consider 
of the state of the American Union." Consideration 
of the state of the American Union in committee of 
the whole house succeeds to consideration of the state 
of America in committee of the whole house of the 
old Congress, provided the American Union is the 
Union of America. If the limits of the Union are 
jdentical with the bounds of America then the word 
" of " in the style " the United States of America " 
has the meaning of identity or co-equality which 
meauiiig the dictionaries state that it has, especially 
when uf-ed with names, as in the phrase to be found 
in Webster " the continent of America." Or the word 
may denote possession or ownership or sovereignty. 
Nothing is more usual through all the debates in the 
convention than the use of the words " United States "' 
and " America " interchangeably. They are used as 
of the same or equal meaning throughout. Indeed 
if the name is to be abbreviated it would accord more 
fully with the language of the convention to speak of 
the Constitution as the Constitution for America than 
to speak of it as the Constitution for the United 
States. And it may be observed here, though perhaps- 
somewhat prematurely, that the first draft of the Con- 
stitution from the committee of detail, copying after 
the Articles of Confederation and Perpetual Union 
says " The style of this government shall be ' the 
United States of America.' " In the revised draft this 
is omitted, but instead the preamble declares '• We, the 
people of the United States . . . ordain and 



( 99 ) 

establish this constitution for the United States of 
America," And the executive power is vested in a 
"• President of the United States of America." 

Along with these records all the history of the 
period is evidence that the cause of the colonies 
throughout the Revolution was conceived to be the 
cause of all America, the cause of the continent, the 
cause of the new world ; and that the real significance 
and import of the war was the separation of America 
from the old world and the independence of America. 
Thomas Paine, beginning number 15 of The Crisis, 
in April, 1783, says " The times that tried men's souls 
are over . . . and the greatest and coinpletest 
revolution the world ever knew is gloriously and hap- 
pily accomplished .... Our great title is 
Americans ; our inferior one varies with the place." 
Mr. Bancroft in his history, speaking of the period of 
the second Continental Congress in 1775 says " The 
Americans were persuaded tliat they were set apart 
for the great duty of establishing freedom in the new 
world and setting up an example for the old." After 
Congress conferred power upon General Washington 
to raise an army throughout all the United States re- 
gardless of the several states' militia and to take 
property for its use regardless of consent, only mak- 
ing compensation therefor in Continental Currency, 
Washington was styled " Dictator of America." The 
United States of America was not without example. 
Very likely Congress had in mind that the executive 
of Great Britain styled himself in all the charters to 
the colonies " B,y the grace of God, of Great Britain, 
France and Ireland, King." Would it not appear 
otherwise than natural if the constitution were not 
designed for America? If within the meaning of the 
foregoing resolutions of the convention the limits of 
the United States are not the bounds of America, 
what are they? ^ 

1 According to this is the District of Columbia the name of the seat of the 
Government of America. 



( 100 ) 

The Virginia plan resolved that republican govern- 
ment and the territory of each state ought to be guar- 
anteed to each state by the United States '} the com- 
mittee of the whole altered this to a guaranty of 
republican constitution and existing laws;^ the con- 
vention in convention made it a guaranty of republi- 
can form of government and protection against foreign 
and domestic violence.^ This was pursuant to the 
first object of the Union, the common defense, that 
each part of the Union should have the benefit for de- 
fense of the force of the whole. By Article 3 of the 
Confederation and Union the states were obligated to 
assist each other against force offered to or attacks 
on any of them on any pretense. Common defense 
against foreign violence was the object of Congress 
in the Revolution; and protection against domestic 
violence and the guaranty of republican form of gov- 
ernment Avere occasioned by the memorial of the gov- 
ernment of Massachusetts to Congress, received and 
entered in the Journal March 9, 1787, only two months 
prior to the assembling of the convention, concerning 
aid for the purpose of suppressing Shays' rebellion in 
that state. 

The Virginia plan proposed, and the commit- 
tee of the whole adopted the resolution that provision 
ought to be made for the continuance of Congress and 
their authorities and privileges until a given day 
after the reform of the articles of union should be 
adopted and for the completion of all their engage- 
ments.^ The convention in convention omitted this 
provision but it was taken up again later, the Con- 
stitution providing, as will be observed, that all en- 
gagements entered into and debts contracted before 
the adoption thereof shall be as valid as under the 
Confederation.^ And this was pursuant to the Arti- 
cles of Confederation and Union which provided" 

1 Resolution 11. * Resolutions 12 and 15 respectively. 

2 Resolution 16. 5 Article 6. 

3 Resolution 18. o Article 12. 



( 101 ) 

that debts contracted by or under the authority of 
Congress x^rior to their assembling pursuant to the 
Confederation should be a charge against the United 
States; thus validating the acts of the Continental 
Congress, the debts contracted whereby were by far 
the heaviest engagement. Moreover, the convention 
also made provision later for the introduction of the 
new government. 

The Virginia plan, the committee of the whole and 
the convention in convention all resolved that pro- 
vision should be made for amending the articles of 
union whenever necessary.^ Such a, provision also 
appeared in the Confederation.^ 

The Virginia plan, the committee of the whole and 
the convention in convention all resolved that the 
legislative, executive and judiciary within the several 
states ought to be bound by oath to support the ar- 
ticles of union. This was required by the British gov- 
ernment of the officers of the several colonies, as ap- 
pears in the preamble to the resolution of Congress, 
of May 15, 1776, recommending to the several colonies 
to set up state governments for their constituents in 
particular and America in general, which has been 
already set out. It recites that it is now irreconcila- 
ble to reason and good conscience for the people of 
the colonies to take the oaths or affirmations neces- 
sary to support government under the crown of Great 
Britain. The committee of the whole and convention 
in convention added provision that this oath should 
be taken by the same officers of the national govern- 
ment, which provision was in accordance with the sev- 
eral states and the British government.' 

The Virginia plan, the convention in committee of 
the whole and in convention resolved that amend- 
ments offered to the Confederation by the convention 

1 Resolutions 13, 17, and 19 respectively. 

2 Article 13. 

3 For oaths of allegiance in England with religious tests, prohibition against 
which was yet to be inserted in this connection in the Constitution, see 30 Car. 
2, St 2; and 7 Jac. 1, chap. 'J. 



( 102 ) 

ought at the proper time after approbation by Con- 
gress to be submitted to an assembly or assemblies 
of representatives recommended by the several legis- 
latures to be exjoressly chosen by the people to con- 
sider and decide thereon.^ This accords with the the- 
ory of the nature of the Union heretofore set out, that 
the states stand as they came into being, jointly and 
severally, the government of the Confederation and 
Union having been made by the states jointly and rat- 
ified by them severally, the states jointly being repre- 
sented by Congress and severally by their legislatures 
respectively. But as a new government was to be 
made for the states jointly by reason that the old gov- 
ernment was inefficient and the several governments 
too dominating for the preservation of the balance and 
equilibrium between the general and the local gov- 
ernments, it was advisable that the new government 
should be set free of the inefficiency of Congress and 
the domination of the several governments by being 
made by the states jointly, not by Congress, but by 
convention chosen for that purpose and ratified and 
confirmed by the states severally, not by their legisla- 
tures, but by conventions chosen for the purpose by 
the people thereof ; yet this should have the authority 
of Congress and the several legislatures; hence the 
resolution that the amendments offered to the Con- 
federation and Union by the convention ought, after 
approval of Congress, to be submitted to an assembly 
or assemblies of representatives recommended by the 
several state legislatures, to be expressly chosen by 
the people to consider and decide thereon. 

All the resolutions of the Virginia plan, the conven 
lion in the committee of the whole house and the con- 
vention sitting in convention have now been gone over, 
except the last two resolutions of the convention in 
convention, numbered 22 and 23. Number 22 provided 
that the representation in the second branch of the 

1 Resolutions 15, 19, and 21, 



( 103 ) 

legislature should consist of two members from each 
state who should yote per capita ; which was according 
to the aforesaid compromise giving each state equal 
vote in the second branch. Number 23 provided for 
qualifications of property and citizenship for members 
of the legislative, executive and judiciary. Qualiflca 
tions of ci cizenship will appear later, as will the pro- 
visions of number 22. Qualifications of property 
were afterwards omitted. 



On July 26 then, some ten weeks after the date for 
the assembling of the convention, and two months 
after business was begun, the resolutions of the con- 
vention were finally agreed upon, having been gone 
over in committee of the whole house and reported 
therefrom to the convention twice, once before and 
once after the rejection of the Jersey plan, and having 
been again gone over in convention. The convention 
was then about two-thirds through the period of its 
existence and its resolutions taken together make up 
the Constitution in block or in mass — if the ex- 
pression may be used in contrast to the constitution 
in detail — as it stood at that time, as follows : It will 
be observed of the legislative, judiciary and executive 
that each is considered with respect of (1) what it 
consists of, and (2) of its powers. 

The government of the United States was to consist 
of legislative, judiciary and executive which should be 
supreme ; the legislative, being taken up first, should 
have two branches, the first branch to be chosen by 
the people of the several states, the second by the sev- 
eral legislatures — provisions being made for the dura- 
tion of the term of office of members of both branches, 
their age, compensation, ineligibility to other office, 
etc. — and each branch should originate acts of legis- 
lation; the power of the legislature should be that 



( 104 ) 

vested in Congress by the Confederation and in all 
cases for the general interests of the Union, and where 
the separate states were incompetent or their legisla- 
tion would interrupt the harmony of the Union ; and 
the acts and treaties of the United States pursuant 
to the articles of Union should be the supreme law 
for the respective states. Representation from the 
several states or their suffrage as members of the 
Union in the first branch of the legislature should be 
according to direct taxation, which should be accord- 
ing to the whole number of free inhabitants of the 
several states and three-fifths of the slaves, to be as- 
certained by census every ten years; and the first 
branch should originate all bills for raising or appro- 
priating money, which should not be altered or 
amended by the second branch; but in the second 
branch of the legislature the several states should 
vote equally, each having two votes. The executive 
should be a single person chosen by the legislature 
for seven years, with fixed compensation and ineligi- 
ble a second time; with power to execute the national 
laws, to appoint to offices and to negative laws not 
passed over him by two-thirds of each branch of the 
legislature, and removable by impeachment. The ju- 
diciary should consist of a supreme tribunal ap- 
pointed by the second branch of the legislature, to 
hold office during good behavior, with fixed compen- 
sation; their jurisdiction to extend to cases arising 
under laws of the general legislature and to other 
questions involving national peace and harmony; 
and the national legislature was empowered to ap- 
point inferior tribunals. Provision was made for the 
admission of new states arising within the limits of 
the United States; for guaranteeing to each state a 
republican government and against violence; for 
amending the articles of union and for ratifying 
the present amendments to the Confederation; and 
for the oaths of state and national officers to support 
the Union. 



( 105 ) 

In all these provisions the convention had pro 
ceeded in accordance with either the constitutions of 
Great Britain and of the several states, — the latter be- 
ing modeled upon the former mutatis mutandis 
through the charters of the several colonies, — or the 
Articles of Confederation and Perpetual Union. 
Moreover, the convention had proceeded in accord- 
ance with these precedents in very noticeable agree- 
ment, the convention in committee of the whole hav- 
ing reported the Virginia plan to the convention with 
but little exception, and, after rejecting the Jersey 
plan, having again reported the same, and the con 
vention in convention having adopted the report with 
few further exceptions. 

There was some addition to the Virginia plan by 
the convention in committee of the whole; thus a 
blank was left in the composition of the executive^ 
which the committee filled in with provision 
that it should be a single person for a term of seven 
years, but removable by impeachment; and to his 
general executive power they added power to appoint 
to oflflces. In these additions the convention in con- 
vention concurred. There was also some alteration 
by the committee of the whole; the Virginia plan 
that the executive with a number of the judiciary 
compose a council to revise and negative laws before 
their operation gave way to provision for the exercise 
of this power by the executive alone. In this also the 
convention in convention concurred. Then the con- 
vention in convention omitted the word " national " 
by unanimous vote; altered the negative on state 
laws from an express to an implied negative; the 
guaranty to the several states was altered somewhat ; 
and there were minor changes of form. Yet taking the 
instrument entire it may be submitted that the con- 
vention in committee pursued the Virginia plan and 
reported it to the convention, and again in convention 
pursued and adopted the report with few exceptions. 

1 This was no doubt owing to the jealousy of the executive consequent upon 
the abuses of the crown and crown governors, as is observed el ewhere. 



( 106 ) 

The great exception — perhaps, beside the omission 
of the word " national "■ — was the composition of the 
second branch of the legislature, as has always been 
recognized. The Virginia plan would have chosen 
this branch by the first branch out of nominations by 
the several legislatures, with the rule of representa 
tion the same as in the first branch; but the conven- 
tion in committee altered the choice of members, pro- 
viding that it should be by the several legislatures, 
and the convention in convention altered the rule of 
representation, providing that it should be equal from 
the states, each having two votes. Thus the second 
branch was composed as in the Confederation and 
Union in respect of both the choice of members and 
the rule thereof, and this, coupled with the omission 
of the word " national' made up the concession of the 
convention to the Jersey plan of government. 

But this concession was enough to remove the chief 
objection of the adherents of the Jersey plan to the 
resolutions of the convention, because it sufficed to 
compromise the chief point of difference between the 
Jersey plan on the one hand and the Virginia plan 
and the resolutions of the convention on the other, 
and to leave the constitution open to interpretation 
to the former. This will appear upon examination of 
the Jersey plan. 



THE JEKSEY PLA.N AND INTEEPEETATION 
IN THE ALTERNATIVE. 

Its first resolution was '^ that the Articles of Con- 
federation ought to be so revised, corrected and en- 
larged as to render the federal constitution adequate 
to the exigencies of government and the preser 
vation of the Union." This was similar to the first 
resolution of the Virginia plan, " that the Articles of 
the Confederation ought to be so corrected and en- 
larged as to accomplish the objects proposed by their 
institution, namely, common defense, security of lib- 
erty and general welfare." The language of both these 
resolutions apiDears to have been drawn from the reso- 
lution of Congress of February 21, 1787, calling the 
convention. The Jersey plan in the course of its res- 
olutions proposed, like the Virginia plan and the reso- 
lutions of the convention, that the government should 
thenceforth consist of legislative, executive and judi- 
ciary, supreme over the several states.^ But its legisla- 
tive was to be composed, not as in the Virginia plan 
and the resolutions of the convention, but was t 
main as in the Confederation, consisting of one 
chamber wherein the several states would be repre- 
sented equally and members would be chosen by the 
several legislatures.^ 

1 Resolutions 2, 4, 5, and 7. 

2 Resolutions 2 and 3. The Jersey plan provided that none of the powers of 

Congress should be exercised "without consent of at least -states." It cannot 

be said how many states the plan would have required to consent to legislation 
by Congress. According to the Confederation and Union there was required for 
the exercise of the greater powers of war, etc., the consent of nine .states. 
Jefferson's Works state that the object of this was to insure the consent of the 
majority of the people of the United States to the exercise of the greater 
powers of war, etc. It is there said that there are three orders of questions: the 
first order, as war and peace, alliances, coinage, raising revenue or troops and 
appointing a commander-in-chief, require the consent of a majority of the 
people of the Union; the second order require a majority of the states; the 
third, as adjourning from day to day, require a majority of the members of 
Congress. Jefferson's Works, vol. 1, p. 398. And on nine slates being a majority 
of the people of the United States, see Madison's Debates in the Convention, 
July 5th, note. 



( 108 ) 

Its legislative powers were those vested in Congress 
by the Confederation with an addition of enumerated 
particular powers, such powers as, when coupled with 
the powers of Congress by the Confederation, sufficed 
to equal the particular powers vested in Congress by 
the Constitution, when it came to be drafted in detail,' 
This will appear later. The resolution for the su- 
premacy of the acts and treaties of the United States 
over the several states which was adopted by the cod- 
vention in convention was in the Jersey plan.^ This 
plan offered provision also for coercing states or 
bodies of men therein to obey the acts and treaties of 
the United States, similar to that which was offered 
by the Virginia plan, but postponed in committee of 
the whole after adoption of the express negative on 
state law^s, as observed.^ It offered the same rule for 
direct taxes, the rule of the resolutions of April 18, 
1783, the whole number of free inhabitants and three- 
fifths of the slaves.^ Its proposals for the executive 
were the same as in the Virginia plan, in respect of 
what it should consist of and of its powers, except that 
no negative w^as offered on state laws,^ the Jersey plan 
here reflecting that jealousy of the executive's share in 
legislation which shows in several state constitutions 
framed during the Revolution, as a result of the abuses 
of the crown and crown governors prior thereto ; — and 
removal of the executive was to be on impeachment 
and conviction by a majority of the executives of the 
several states, instead of on impeachment and convic- 

1 esolution 2. 

2 Resolution 7. 

a Resolution 7, par. 2. 

4 Resolution 3. But as representation from the states was to be equal by 
this plan, it will be observed that representation was not according to the same 
rule as direct taxation. Thus the plan failed, as the Confederation had failed 
to observe the principle of the Revolution of representation according to 
taxation. It appeared in the convention that the first Continental Congress 
provided for equal representation only because proportionate representation 
could not be had because the population was not ascertained when the rule 
was made; but equal representation of the states having been inaugurated it 
was carried into the Confederation by the same forces which here sought 
to perpetuate it by means of the Jersey plan. 

5 Resolution 4. 



C 109 ) 

tion alone, as in the resolutions of the convention^ Its 
proposals for the judiciary were similar to the Vir- 
ginia plan in respect of the supreme tribunal and its 
composition, save that the appointment of judges was 
committed to the executive instead of to the second 
branch of the legislature;^ and in respect of its juris- 
diction this was true so far that the Jersey plan of- 
fered all the particular cases of jurisdiction appear- 
ing in the Constitution when it came to be drafted in 
detail, but not its general jurisdiction of all cases 
arising under laws of the general legislature: 
moreover the Jersey plan offered no power to estab- 
lish inferior tribunals.^ It made proposals for the 
admission of new states into the Union similar to the 
Virginia plan, and also for oaths of state officers to 
support the Union.'* This was all, — except three reso- 
lutions of the Jersey plan, which the Virginia plan 
did not contain, providing (1) for the hearing of dis- 
putes between the United States and individual states 
respecting territory, (2) for a uniform rule of natu- 
ralization, and (3) that offenders in any state not be- 
ing citizens thereof should be deemed guilty of the 
same offense as if citizens thereof.^ 

The Virginia plan provided in addition, as observed, 
for the continuance of Congress pending the introduc- 
tion of the new government and the completion of 
their engagements ; for amending the Union then and 
in future; and guaranteeing to each state republican 
government, etc., as aforesaid. But as far as these 
were derived from the Confederation they were im- 
plied in the Jersey plan, which contemplated the con- 
tinuance of the Confederation amended. 

1 See the recital of this provision of the Jersey plan in Madison's Debates 
for a different version, that removal of the executive should be by a majority 
of the executives of the several states, without impeachment. 

2 This giving the appointment of judges to the executive indicates the 
readiness of the Jersey plan to strengthen the executive as vyas afterwards 
done in the consideration of the Constituticn in detail, only allowing the 
■several states the same voice in the elect'on of the president as in the election 
of Congress. 

^ Resolution 5 

4 Resolutions 8 and 6. 

5 Resolutions 9, 10, and 11. 



( no ) 

The chief difference apparent between the Virginia 
and the Jersey plans was in the composition of the 
legislature, the Jersey plan having but one chamber 
chosen by the several legislatures with representa- 
tions from the several states equally, the Virginia plan 
having two chambers chosen, the first by the people 
of the several states, the second by the first out of 
nominations by the several legislatures, representa- 
tion being according to contributions in both; but 
this difference was only a means to a much Avider dif- 
ference of the theor}^ of Union as has always been rec- 
ognized. The Jersey plan denominated the gov- 
ernment federal^ meaning federal as opiDosed to na- 
tional, federal in the sense that the government of the 
United States, its acts and treaties, was supreme over 
the several states, but only witliin limits set ulti- 
juately by the several states whereof tlie consequences 
would be that the United States was dependent upon 
the several states, and the latter were really and in 
truth, because ultimately, supreme. In the last analy- 
sis the United States would be but the common 
agent of the several states, having no original power 
but only derived or delegated authority from the sev- 
eral states. 

Such has always been recognized to be the federal 
theory of government. On June 9, in the convention, 
Mr. Patterson, who offered the Jersey plan said, as 
reported in Madison's Debates, that a confederacy 
supposes sovereignty in the members composing it, 
and sovereignty supposes equality; if they were to 
become a nation they must abolish the several states. 

By the federal theory the several states would have 
the rights asserted by the colonies against Great Brit- 
ain, notwithstanding they had the representation in 
the Union denied them over there. Accordingly they 
could not be taxed without their consent, meaning 
thereby the absolute consent of their several legisla 
tures, instead of consent by representation in the 
Union, according to the theory of the Union ; and this 
is evidenced in the Jersey plan in its putting taxes to 



( 111 ) 

the front, as the foremost matter here, as against 
Great Britain, at once after the resolutions to revise 
the Articles of the Confederation; offering to Con- 
gress authority to raise revenue by the identical means 
which Great Britain employed to tax the colonies 
without their consent or representation, and which 
means are recited as grievances against Great Brit 
ain in the Declaration of Rights of October 14, 1774, 
being duties by stamps, and on imports, and by post- 
age, as well as taxes by requisition to the colonies sev- 
erally; and coupling this authority with the further 
authority offered, and with prohibition against still 
further authority, both of which Great Britain em- 
ployed as means to the same end, and which are re- 
cited in the Declaration of Rights aforesaid. Thus 
power to regulate commerce external to the several 
states, — that is, among the several states and with for 
eign nations — which was conceded to Great Britain 
when exercised in good faith and not for revenue, was 
employed to raise revenue — the duty on tea being 
called but a regulation of commerce — and recited 
among the grievances in the Declaration of Rights, as 
in many other papers and addresses of the Continental 
Congress; which Declaration also recites the act of 
Parliament for prosecuting offenses for the recovery 
of penalties and forfeitures for non-payment of taxes 
imposed, in the courts of vice-admiralty, as means 
whereby jurisdiction of the king's courts was uncon- 
stitutionally extended beyond their ancient limits, and 
subjects were no longer judged in the courts of the 
colonies, proceeding according to the course of com- 
mon law, with the right of jury trial ; but, as the lan- 
guage runs, subjects w^ere " reduced to the sad neces- 
sity of being judged by a single man, a creature of the 
crown."^ 

By the Jersey plan the federal theory would be 
maintained by the several legislatures as equal««, 
choosing members of the federal Congress who should 

1 See for a modern instance of this question, In re. Debs, decided by the 
United States Supreme Court in 1895. 



( 112 ) 

be dependent on and represent the several states over 
the United States. But this state supremacy, it will 
lie observed, might he maintained in the Virginia plan 
as w-ell as in the Jersey plan, provided one only of the 
tivo branches of the legislature should be composed 
as in the Jersey plan, because the branch so composed 
might always negative legislation of the other inim- 
ical to that plan, since by the theo7^y of the two 
branches each was to have a negative on the other. 
And this composition of the legislature being the 
chief difference between the two plans, the concession 
in the resolutions of the convention in convention of 
one branch composed according to the Jersey plan, 
coupled with the unanimous omission of the word 
" national " from the resolutions of the convention 
in convention, sufficed to remove the chief objection 
of the adherents of the Jersey j)lan to the resolutions 
of the convention, and to bring the entire convention, 
majority and minority, Virginia plan, committee of 
tlie whole, convention in convention, and Jersey plan 
ail into very general agreement. The difference left 
open was a difference of interpretation and construc- 
tion. The government might be construed to the 
federal plan or to the national plan. 

Thus, Avhen, on July 26, the resolutions of the con- 
vention in convention were referred to a committee of 
detail ^o draft a constitution conformable to those 
resolutions they presented a constitution in mass or 
in block, which may be summed up as follows, with 
the precedents of the several resolutions, by whom 
they were agreed to in the convention, and how inter 
preted. 

The government of the United States was to con- 
sist of a legislative, judiciary and executive, derived 
from the constitutions of the several states and of 
Great Britain — the former constitutions being derived 
from the latter by way of the several colonies; and 
this was agreed to in all four sets of resolutions, the 
Virginia plan, the report from committee of the 



( 113 ) 

whole twice, the Jersey plan, aud the resolutions of 
the convention in convention. The government was 
to be sui^reme ; this was agreed to by all without ex- 
ception as aforesaid, though interpreted differently. 
The legislature should have two branches, according 
to the constitutions aforesaid ; this was agreed to by 
all but the Jersey plan, which offered a legislative of 
but one chamber, according to the Confederation ; yet 
Avith one chamber at command the several states 
could negative legislation of the other, and withhold 
the supremacy of the United States. The first branch 
should be elected by the people of the constituent 
bodies of the Union, according to the constitutions; 
this was agreed to by all but the Jersey plan, propos- 
ing the choice by the several legislatures as in the 
Confederation. The second branch should be chosen 
by the several legislatures, according to the Confed- 
eration, and agreed to by all but the Virginia plan. 
Legislative power should be that vested in Congress 
by the Confederation, agreed to by all; and in all 
cases for the general interests of the Union — inserted 
by the convention in convention from the purposes of 
Congress by the Confederation — and where the states 
should be separately incompetent or individual legis- 
lation would interrupt the harmony of the Union; 
which was according to the principle of self-govern- 
ment, general and local, of the constitutions, and 
agreed to by all but the Jersey plan; which offered 
several particular powers only, yet all the particular 
powers of Congress by the Constitution when 
it came to be drafted in detail. Legislative 
power to negative state laws was agreed to by all, 
though in the Virginia plan and committee of the 
whole the negative was express and direct, according 
to the British executive's negative over the colonies, 
while in the Jersey plan and the convention in con- 
vention it was implied and indirect, according to the 
Confederation. Representation in the first branch 
should be according to direct taxation, which should 



( 114 ) 

be according to the whole number of free inhabitants 
of the several states and three-fifths of their slaves; 
this was agreed to by all but the Jersey plan, it may 
be submitted, though in the Virginia plan expressed 
otherwise, and in committee of the wliole not expressed 
in part, but implied by the expression of the rule 
which was the rule of direct taxation; the principle 
of representation according to direct taxation being 
from the constitutions and the rule of numbers from 
the Confederation; the Jersey plan having offered 
representation and direct taxation as in the Confed- 
eration, where they were not according to each other. 
Representation in the second branch should be equal 
from the several states as in the Confederation, which 
was agreed to by the convention in convention and 
the Jersey plan, the committee of the whole and the 
Virginia plan having agreed on representation in the 
second branch as in the first branch. But in consider- 
ation of the several states retaining representation 
as equals in the second branch they lost the initiative 
in bills for revenue, and by the compromise all bills 
for revenue should originate in the first branch and 
not be altered or amended by the second, which was 
according to the British constitution. 

The executive should be a single person chosen by 
the legislature for seven years, with fixed compensa- 
tion and ineligible a second time, but removable by 
impeachment; with general power to execute the gen- 
eral laws and authority to appoint to of&ces ; all ac- 
cording to the constitutions, yet developed from the 
Confederation ; and agreed to by all, save that the Vir- 
ginia j)lan and the Jersey plan did not confine the 
executive to a single person or fix the duration of 
office. Moreover, the executive should have a negative 
on all laws of the general legislature not again 
passed over him by two-thirds of each branch, which 
Avas nearly according to the constitution of New York, 
the latest among the state constitutions;^ and was 

1 The British executive's absolute negative not having been exercised for 
one hundred years. 



( 115 ) 

agreed to by the committee of the whole and the con- 
vention in convention, the Virginia plan giving the 
negative to the executive with a council of the judi- 
ciary, and the Jersey plan, according to the early 
state constitutions, having offered no negative at all. 

The judiciary should consist of a supreme tribunal 
chosen by the second branch of the legislature, with 
provision for its independency; and jurisdiction ex- 
tending to cases arising under laws of the general 
legislature ; and inferior tribunals were authorized to 
be appointed by both branches of the legislature. 
This was pursuant to the constitutions, yet developed 
from the Confederation, and was agreed to by all save 
that the Virginia plan did not provide who should ap- 
point the judiciary, and the Jersey plan would have 
given that appointing power to the executive. More- 
over, the Jersey plan offered no inferior tribunals, and 
confined the jurisdiction to particular and enumer- 
ated cases; yet offering all the particular cases con- 
tained in the Constitution when it came to be drafted 
in detail. 

Provision for admission of new states arising 
within the limits of the United States was from the 
Confederation and was agreed to by all, the Jersey 
plan providing in terms for the admission of new 
states " into the Union," and the Union implying its 
limits. Guaranty to each state of republican govern- 
ment and against violence was developed from the 
Confederation, and so agreed to in different forms 
by all but the Jersey plan, which left the guaranty 
as in the Confederation. Oaths of state and national 
officers to suj)port the articles of Union were ac- 
cording to the constitutions, and were agreed to by 
all, save that the Virginia and the Jersey plans had 
not included national officers in the oath. Provisions 
for the continuance of Congress and the completion 
of their engagements ; for amending the Union in fu- 
ture, and ratifying the present amendments, were 
derived from the Confederation, and agreed to by all, 



( 116 ) 

except that the Jersey plan made no further provision 
on these matters, contemplating the continuance of the 
present government with amendments. 

Presenting itself thus, the instrument was open to 
widely different interpretation. By the Virginia plan, 
the resolutions of the convention in committee of the 
whole and in convention, that is by the national plan, 
the resolution that the government was to be supreme 
meant conclusively supreme over the several states; 
while by the Jersey plan, the federal plan, it appears 
to have meant supremacy within limits set ultimately 
by the several states, whereby the latter would be ul- 
timately supreme over the former; and freedom of 
interpretation either way was permitted by the unani- 
mous omission of the word " national " from the 
resolution of the convention in convention. By 
the national plan this supremacy was a positive su- 
premacy to be maintained over the several states; 
for the federal plan it was rather negative, the with- 
holding the supremacy of the United States. Only 
by the concurrence of both branches of the legislature 
could national supremacy be maintained, since both 
branches must concur to pass laws ; while federal su- 
premacy could be maintained by only one branch, 
since either branch might negative legislation of the 
other. The legislature was the theatre for the deter- 
mination of supremacy. The second branch being the 
one composed according to the federal plan would be 
deemed to represent the several states, and the firsc 
branch composed according to the national plan 
would be deemed to represent the United States.^ As 
the second branch should prevail, legislation would 
represent the several states and the government be 
construed to the federal plan, while as the first branch 
prevailed, the government would be construed to the 
national plan, and legislation would represent the 
United States. In the latter event it may be observed 
the status of tlie several states iu the second branch 

1 This appears in fact in the sr eeches of the period of Webster and Calhoun. 



( 117 ) 

would correspond to that of tlie constituent bodies, 
the counties and towns of England and the several 
states in the upper branches of their legislatures, for 
therein their constituent bodies retained ancient priv- 
ileges, notwitiistandiug their dis]3arity as i3arts of the 
whole, being represented in several cases as equals, 
with choice of members by the upper classes, rather 
than by the i)eople: so by the national plan the sev- 
eral states would retain ancient privileges in the 
second branch of the legislature, according to the con 
stituent bodies in the precedent constitutions, — which 
latter bodies were also, one time, perhaps, independ- 
ent and equal before they were united. 

Another difference of interiDretation was that as 
the national plan prevailed, legislative power would 
be one general power in all cases for the general inter 
ests of the Union, and where the separate states 
should be incompetent or their legislation would in- 
terrupt the harmony of the whole; that is power ac- 
cording to the purposes of Congress by the Confeder- 
ation, and according to the constitutional precedents , 
the power of perfect union ; while as the federal plan 
prevailed the legislature would have only several par- 
ticular powers, remaining for further authority, as the 
same should be required from time to time, or from 
period to period, dependent on the several states. 
By the national plan the legislature would be inde- 
pendent once for all, and adequate to perfect union. 

As the national plan prevailed, the negative on the 
several states would be exercised ; as the federal plan 
prevailed, its exercise would be withheld. In either 
case coercion by force of arms of the several states or 
any body of men acting by their authority would be 
avoided ; but only with the consequences in the alter- 
native, of the supremacy of the United States or of 
the several states. 

By the national plan direct taxes would be taxes 
apportioned direct to the several states, instead of 
extending throughout them all united, which would 



( 118 ) 

be indirect taxation to the several states ; and the na- 
tional legislature might administer the quotas di- 
rectly to the inhabitants thereof. By the federal plan 
direct taxes would be voluntary contributions from 
the several states, which Congress might only direct 
collection of in non-complying states, and pass acts 
directing the same. 

By the national plan the limits of the United States 
would appear to be the bounds of America ; but by the 
federal plan they would be restricted to the several 
states ultimately; for otherwise to which of the sev- 
eral states would territory beyond the bounds of the 
several states ultimately belong?^ 

But by the two plans this identity would appear, 
that interpretation or construction belonged to the 
legislative, rather than to the judiciary or executive, 
as is witnessed by the direct negative of the Virginia 
plan and the committee of the whole being by the 
national legislature whenever state laws should con- 
travene the articles and treaties of Union in their 
opinion; and by the indirect negative of the Jersey 
plan and the resolution of Congress wherefrom the 
resolution of the convention in convention was drawn, 
being by Congress on the ground that in their opinion 
state laws contradicted and were repugnant to the 
constitutional acts and treaties of Union. Moreover, 
the essence of the controversy and the compromise 
between the national and federal plans going to tlie 
composition of the legislative would appear to assume 
it to be the medium and theatre for control of the gov 
ernment, to construe it to the supremacy of the Uni led 
States or of the several states ; to interpret the power 
of Congress as one general power or as many particu- 
lar powers; to exercise the negative on the several 
states or to withhold it. 

i This question was, as a matter of fact, a great incentive to Union senti- 
ment in the case of the old Northwest Territory. 



PART II 



THE PUKPOSE. 

Here, for the second part hereof, will be set out 
from the Journal the papers which were under con- 
sideration by the convention subsequent to August 
6th, when the committee of detail to whom were re- 
ferred the proceedings of the convention, with the 
Pinckney draft and the Jersey plan, with instructions 
to report a constitution conformable to those pro- 
ceedings, made their report. These papers are the 
first or rough draft of the Constitution reported from 
the committee of detail August 6th, the Pinckney 
draft,- — the Jersey plan being here again referred to; 
the revised and arranged draft of the constitution re- 
ported from the committee of revision September 
1 2th ; and the constitution complete as signed Septem- 
ber 17th. 

These will be gone over article by article, sectioD 
by section, to observe the precedents of the rough draft 
beyond those already noted, and how it conforms to 
the resolutions of the convention, and yet is interpret- 
able to the Jersey plan ; then to observe the changes 
in tlie draft prior to September 12th, noting additions 
made with their precedents, and also omissions ; and 
lastly the final changes between September 12th and 
September 17th. The Articles of Confederation and 
Perpetual Union are here again referred to; and it 
will be borne in mind that to the committee of detail 
were referred the Pinckney draft and the Jersey plan, 
along with the proceedings of the convention. 



THE PINCKNEY DRAFT. 

[Paper furnished by Mr. Pinckney.] 

" We, the people of the states of New Hampshire, Massa- 
chusetts, Ehode Island and Providence Plantations, Connect- 
icut, New York, New Jersey, Pennsylvania, Delaware, Mary- 
land, Virginia, North Carolina, South Carolina, and Georgia, 
do ordain, declare, and establish, the following constitution, 
for the government of ourselves and posterity. 

" Aeticle I. — The style of this government shall be. The 
United States of America, and the government shall consist 
of supreme legislative, executive, and judicial powers. 

" Art. II. — The legislative power shall be vested in a Con- 
gress, to consist of two separate Houses; one to be called the 
House of Delegates, and the other the Senate, who shall 
meet on the day of in every year. 

" Aet. III. — The members of the House of Delegates shall 
be chosen every year by the people of the several 

states ; and the qualifications of the electors shall be the same 
as those of the electors in the several states for their legisla- 
tures. Each member shall have been a citizen of the United 
States for years ; and shall be of years of age, 

and a resident in the state he is chosen for. Until a census of 
the people shall be taken, in the manner hereinafter men- 
tioned, the House of Delegates shall consist of , to be 
chosen from the different states in the following proportions ; 
for New Hampshire, ; for Massachusetts, ; for 
Ehode Island, ; for Connecticut, ; for New 
York, ; for New Jersey, ; for Pennsylvania, 
; for Delaware, ; for Maryland, ; for 
Virginia, ; for North Carolina, ; for South 
Carolina, ; for Georgia, ; and the legislature 
shall hereinafter regulate the number of delegates by the 
number of inhabitants, according to the provisions herein- 
after made, at the rate of one for every thousand. All 
money bills of every kind shall originate in the House of Dele- 
gates, and shall not be altered by the Senate. The House of 
Delegates shall exclusively possess the power of impeachment, 
and shall choose its own officers; and vacancies therein shall 
be supplied by the executive authority of the state in the 
representation from which they shall happen. 

" Aet. IV. — The Senate shall be elected and chosen by the 
House of Delegates; which House, immediately after their 
meeting, shall choose by ballot senators from among 



( 1^1 ) 

the citizens and residents of New Hampshire; from 

among those of Massacliusetts ; from among those 

of Khode Island; from among those of Connecticut; 

from among those of New York; from among 

those of New Jersey; from among those of Pennsyl- 

vania; from among those of Delaware; from 

among those of Maryland; from among those of Vir- 

ginia ; from among those of North Carolina ; 

from among those of South Carolina; and 

from among those of Georgia. The senators chosen from 
New Hampshire, Massachusetts, Ehode Island, and Connecti- 
cut shall form one class; those from New York, New Jersey, 
Pennsylvania, and Delaware, one class; and those from 
Maryland, Virginia, North Carolina, South Carolina, and 
Georgia, one class. The House of Delegates shall num- 
ber these classes, one, two, and three ; and fix the 
times of their service by lot. The first class shall serve for 
years; the second for years; the third 

for years. As their times of service expire, the 

House of Delegates shall fill them up by elections for 
years; and they shall fill all vacancies that arise from 
death or resignation, for the time of service remaining of the 
members so dying or resigning. Each senator shall be 
years of age at least; and shall have been a citizen of the 
United States for four years before his election; and shall be 
a resident of the state he is chosen from. The Senate shall 
choose its own officers. 

" Art. V. — Each state shall prescribe the time and manner 
of holding elections by the people for the House of Delegates ; 
and the House of Delegates shall be the judges of the elec- 
tions, returns, and qualifications of their members. In each 
House, a majority shall constitute a quorum to do business. 
Freedom of speech and debate in the legislature shall not be 
impeached, or questioned, in any place out of it; and the 
members of both houses shall, in all cases, excent for treason, 
felony, or breach of the peace, be free from arrest during their 
attendance on Congress, and in going to and returning from 
it. Both Houses shall keep Journals of their proceedings, 
and publish them, except on secret occasions; and the yeas 
and nays may be entered thereon at the desire of one 
of the members present. Neither House, without the con- 
sent of the other, shall adjourn for more than days 
nor to any place but where they are sitting. 

" The members of each House shall not be eligible to, or 
capable of holding, any office under the Union, during the 
time for which they have been respectively elected; nor the 
members of the Senate for one year after. The members of 



( 122 ) 

each House shall be paid for their services by the states which 
they represent. Every bill which shall have passed the legis- 
lature shall be presented to the President of the United 
States for his revision; if he approves it, he shall sign it; 
but if he does not approve it, he shall return it, with his ob- 
jections, to the House it originated in; which house, if two- 
thirds of the members present, notwithstanding the Presi- 
dent's objections, agree to pass it, shall send it to the other 
House, with the President's objections, where if two-thirds 
of the members present also agree to pass it, the same shall 
become a law; and all bills sent ■'■^ the President, and not re- 
turned by him within days, shall be laws, unless the 
legislature, by their adjournment, prevent their return; in 
which case they shall not be laws. 

" Art. VI. — The legislature of the United States shall 
have the power to lay and collect taxes, duties, imposts, and 
excises ; 

" To regulate commerce with all nations, and among the 
several states; 

" To borrow money, and emit bills of credit ; 

" To establish post-offices ; 

" To raise armies ; 

" To build and equip fleets ; 

" To pass laws for arming, organizing and disciplining 
the militia of the United States ; 

" To subdue a rebellion in any state, on application of its 
legislature ; 

" To coin money, and regulate the value of all coins, and 
fix the standard of weights and measures ; 

" To provide such dockyards and arsenals, and erect such 
fortifications, as may be necessary for the United States, and 
to exercise exclusive jurisdiction therein; 

" To appoint a treasurer by ballot ; 

" To constitute tribunals inferior to the supreme court ; 

" To establish post and military roads ; 

" To establish and provide for a national university at the 
seat of government of the United States ; 

" To establish uniform rules of naturalization ; 

" To provide for the establishment of a seat of government 
for the United States, not exceeding miles square, 

in which they shall have exclusive jurisdiction ; 

" To make rules concerning captures from an enemy ; 

" To declare the law and punishment of piracies and fel- 
onies at sea, and of counterfeiting coin, and of all offences 
against the laws of nations; 



( 123 ) 

" To call forth the aid of the militia to execute the laws of 
the Union, enforce treaties, suppress insurrections, and repel 
invasions ; 

'' And to make all laws for carrying the foregoing powers 
into execution. 

" The legislature of the United States shall have the power 
to declare the punishment of treason, which shall consist only 
in levying war against the United States, or any of them, 
or in adhering to their enemies. No person shall be convicted 
of treason but by the testimony of two witnesses. 

" The proportion of direct taxation shall be regulated by 
the whole number of inhabitants of every description; which 
number shall, within years after the first meeting of the 

legislature, and within the term of every year after, 

be taken in the manner to be prescribed by the legislature. 

" No tax shall be laid on articles exported from the states : 
nor capitation tax, but in proportion to the census before di- 
rected. 

" All laws regulating commerce shall require the assent of 
two thirds of the members present in each house. The United 
States shall not grant any title of nobility. The legislature 
of the United States shall pass no law on the subject of re- 
ligion; nor touching or abridging the liberty of the press, 
nor shall the privilege of the writ of habeas corpus ever be 
suspended, except in cases of rebellion or invasion. 

" All acts made by the legislature of the United States^ 
pursuant to this Constitution, and all treaties made under the 
authority of the United States, shall be the supreme law of 
the land; and all judges shall be bound to consider them as 
such in their decisions. 

" Aet. VII. — The Senate shall have the sole and exclu- 
sive power to declare war, and to make treaties, and to ap- 
point ambassadors and other ministers to foreign nations, and 
judges of the supreme court. 

" They shall have the exclusive power to regulate the man- 
ner of deciding all disputes and controversies now subsisting, 
or which may arise, between the states, respecting jurisdiction 
or territory. 

"Aet. VIII. — The executive power of the United States 
shall be vested in a President of the United States of Amer- 
ica, which shall be his style; and his title shall be His Ex- 
cellency. He shall be elected for years; and shall be 
re-eligible. 

" He shall from time to time give information to the legis- 
lature of the state of the Union, and recommend to their con- 
sideration the measures he may think necessary. He shall 



( 124 ) 

take care that the laws of the United States be duly exe- 
cuted. He shall commission all the officers of the United 
States; and, except as to ambassadors, other ministers, and 
judges of the supreme court, he shall nominate, and, with the 
consent of the Senate, appoint, all other officers of the United 
States. He shall receive public ministers from foreign na- 
tions ; and may correspond with the executives of the different 
states. He shall have power to grant pardons and reprieves, 
except in impeachments. He shall be commander-in-cMef of 
the army and navy of the United States, and of the militia of 
the several states ; and shall receive a compensation which shall 
not be increased or diminished during his continuance in office. 
At entering on the duties of his office, he shall take an oath 
faithfully to execute the duties of a President of the United 
States. He shall be removed from his office on impeachment 
by the House of Delegates, and conviction, in the supreme 
court, of treason, bribery, or corruption. In case of his re- 
moval, death, resignation, or disability, the president of the 
Senate shall exercise the duties of his office until another 
President be chosen. And in case of the death of the presi- 
dent of the Senate, the speaker of the House of Delegates shall 
do so. 

" Aet. IX. — The legislature of the United States shall 
have the power, and it shall be their duty, to establish such 
courts of law, equity, and admiralty, as shall be necessary. 

"The judges of the courts shall hold their offices during 
good behavior; and receive a compensation, which shall not 
be increased or diminished during their continuance in of- 
fice. One of these courts shall be termed the supreme court; 
whose jurisdiction shall extend to all cases arising under the 
laws of the United States, or affecting ambassadors, other 
public ministers and consuls; to the trial of impeachment of 
officers of the United States; to all cases of admiralty and 
maritime jurisdiction. In cases of impeachment affecting 
ambassadors, and other public ministers, this jurisdiction 
shall be original; and in all other cases appellate. 

" All criminal offences, except in cases of impeachment, 
shall be tried in the state where they shall be committed. The 
trials shall be open and public, and be by jury. 

" Art. X — Immediately after the first census of the people 
of the United States, the House of Delegates shall apportion 
the Senate by electing for each state, out of the citizens resi- 
dent therein, one senator for every members each 
state shall have in the House of Delegates. Each state shall 
be entitled to have at least one member in the Senate. 

" Aet. XL — No state shall grant letters of marque and re- 
prisal, or enter into treaty, or alliance, or confederation; nor 



( 125 ) 

grant any title of nobility; nor, without the consent of the 
legislature of the United States, lay any impost on imports, 
nor keep troops or sliips of war in time of peace; nor enter 
into compacts with other states or foreign powers, or emit 
bills of credit, or make anything but gold, silver, or copper, 
a tender in payment of debts ; nor engage in war, except for 
self-defence when actually invaded, or the danger of invasion 
is so great as not to admit of a delay until the government 
of the United States can be informed thereof. And, to ren- 
der these prohibitions effectual, the legislature of the United 
States shall have the power to revise the laws of the several 
states that may be supposed to infringe the T)owers exclu- 
sively delegated by this Constitution to Congress, and to nega- 
tive and annul such as do. 

"Art. XIL— The citizens of each state shall be entitled 
to all privileges and immunities of citizens in the several 
states. Any person, charged with crimes in any state, fleeing 
from justice to another, shall, on demand of the executive 
of the state from which he fled, be delivered up, and removed 
to the state having jurisdiction of the offence. 

"xA-ET. XIII. — Full faith shall be given, in each state, to 
the acts of the legislature, and to the records and judicial 
proceedings of the courts and magistrates of every state. 

''Art. XIY. — The legislature shall have power to admit 
states into the Union, on the same terms with the original 
states; provided two-tliirds of the members present in both 
houses agree. 

"Art. XV. — On the application of the legislature of a 
state, the United States shall protect it against domestic in- 
surrection. 

" Art. XVI.— If two thirds of the legislatures of the states 
apply for the same, the legislature of the United States shall 
call a convention for the purpose of amending the Constitu- 
tion; or, should Congress, with the consent of two-thirds of 
each house, propose to the states amendments to the same, the 
agreement of two-thirds of the legislatures of the states shall 
be sufficient to make the said amendments parts of the Con- 
stitution. 

" The ratiflcation of the conventions of 

states shall be sufficient for organizing this Constitution. 



DRAFT OF A CONSTITUTION. 

REPORTED BY THE COMMITTEE OF FIVE, AUGUST 6, 1787. 

[One copy of this printed draft is among the papers deposited by President 
Washington in tne Department of State; another copy is among the papers of 
Mr. Brearly, furnished by General Bloomheld.] 

" We, the people of the states of New Hampshire, Massa- 
chusetts, Ehode Island and Providence Plantations, Connecti- 
cut, 'New York, Kew Jersey, Pennsylvania, Delaware, 
Maryland, Virginia, North Carolina, South Carolina, and 
Georgia, do ordain, declare and establish the following Consti- 
tution for the government of ourselves and our posterity : — 

" Aeticle I. — The style of this government shall be, ' The 
United States of America.^ 

'^ Art. II. — The government shall consist of supreme legis- 
lative, executive, and judicial powers. 

" Aet. III. — The legislative power shall be vested in a Con- 
gress, to consist of two separate and distinct bodies of men, 
a House of Eepresentatives and a Senate; each of which shall 
in all cases have a negative on the other. The legislature 
shall meet on the first Monday in December every year. 

" Art. IV. — Sect. 1. The members of the House of Rep- 
resentatives shall be chosen every second year, by the people 
of the several states comprehended within the Ilnion. The 
qualifications of the electors shall be the same from time to 
time, as those of the electors, in the several states, of the 
most numerous branch of their own legislatures. 

" Sect. 2. Every member of the House of Eepresentatives 
shall be of the age of twenty-five years at least; shall have 
been a citizen in the United States for at least three years be- 
fore his election; and shall be, at the time of his election, a- 
resident of the state in which he shall be chosen. 

" Sect. 3. The House of Eepresentatives shall, at its first 
formation, and until the number of citizens and inhabitants 
shall be taken in the manner hereinafter described, consist of 
sixty-five members, of whom three shall be chosen in New 
Hampshire, eight in Massachusetts, one in Ehode Island and 
Providence Plantations, five in Connecticut, six in New York, 
four in New Jersey, eight in Pennsylvania, one in Delaware, 
six in Maryland, ten in Virginia, five in North Carolina, five 
in South Carolina and three in Georgia. 

" Sect. 4. As the proportions of numbers in different 
states will alter from time to time ; as some of the states may 
hereafter be divided; as others may be enlarged by addition 
of territory; as two or more states may be united; as new 



( 127 ) 

states will be erected within the limits of the United States, — 
the legislature shall, in each of these cases, regulate the num- 
ber of representatives by the number of inliabitants, accord- 
ing to the provisions hereinafter made, at the rate of one for 
every forty thousand. 

" S-EOT. 5. All bills for raising or appropriating money, 
and for fixing the salaries of the officers of government, shall 
originate in the House of Kepresentatives, and shall not be 
altered or amended by the Senate. Xo money shall be drawn 
from the public treasury, but in pursuance of appropriations 
that shall originate in the House of Eepresentatives. 

" Sect. 6. The House of Eepresentatives shall have the 
sole power of impeachment. It shall choose its speaker and 
other officers. 

" Sect. 7. Vacancies in the House of Representatives shall 
be supplied by writs of election from the executive authority 
of the states in the representation from which they shall hap- 
pen. 

"Art. v.— Sect. 1. The Senate of the United States 
shall be chosen by the legislatures of the several states. Each 
legislature shall choose two members. Vacancies may be 
supplied by the executive until the next meeting of the legia- 
latup . Each member shall have one vote. 

" Sect. 2. The senators shall be chosen for six years ; but 
immediately after the first election, they shall be divided, by 
lot, into three classes, as nearly as may be, numbered one, 
two, and three. The seats of the members of the first class 
shall be vacated at the expiration of the second year; of the 
second class at the expiration of the fourth year ; of the third 
class at the expiration of the sixth year ; so that a third part 
of the members may be chosen every second year. 

" Sect. 3. Every member of the Senate shall be of the 
age of thirty years at least; shall have been a citizen of the 
United States for at least four years before his election, and 
shall be, at the time of his election, a resident of the state 
for which he shall be chosen. 

" Sect. 4. The Senate shall choose its own president and 
other officers. 

" Art. VI. — Sect. 1. The times, and places, and manner, 
of holding the elections of the members of each House, shall 
be prescribed by the legislature of each state; but their own 
provisions concerning them may, at any time, be altered by 
the legislature of the United States. 

" Sect. 2. The legislature of the United States shall have 
authority to establish such uniform qualifications of the mem- 
bers of each House, with regard to property, as to the said 
legislature shall seem expedient. 



( 128 ) 

" Sect. 3. In each House a majority of the members shall 
constitute a quorum to do business; but a smaller number 
may adjourn from day to day. 

" Sect. 4. Each House shall be the judge of the elections, 
returns, and qualifications, of its own members. 

" Sect. 5. Freedom of speech and debate in the legislature 
shall not be impeached or questioned in any court or place 
out of the legislature ; and the members of each House shall, 
in all cases, except treason, felon}'-, and breach of the peace, 
be privileged from arrest during their attendance at Congress, 
and in going to and returning from it. 

" Sect. 6. Each House may determine the rules of its pro- 
ceedings; may punish its members for disorderly behavior; 
and may expel a member. 

" Sect. 7. The House of Eepresentatives and the Senate 
when it shall be acting in a legislative capacity, shall keep a 
journal of their proceedings; and shall, from time to time, 
publish them; and the yeas and nays of the members of each 
House, on any question, shall, at the desire of one-fifth part 
of the members present, be entered on the Journal. 

" Sect. 8. ISTeither House, without the consent of the other, 
shall adjourn for more than three days, nor to any other place 
than that at which the two Houses are sitting. But this reg- 
ulation shall not extend to the Senate when it shall exercise 
the powers mentioned in the Article. 

" Sect. 9. The members of each House shall be ineligible 
to, and incapable of holding, any office under the authority of 
the United States, during the time for which they shall re- 
spectively be elected; and the members of the Senate shall 
be ineligible to, and incapable of holding, any such office for 
one year afterwards. 

" Sect. 10. The members of each House shall receive a 
compensation for their services, to be ascertained and paid by 
the state in which they shall be chosen. 

" Sect. 11. The enacting style of the laws of the United 
State shall be, ' Be it enacted, and it is hereby enacted, by 
the House of Eepresentatives, and by the Senate, of the 
United States, in Congress assembled.' 

" Sect. 12. Each House shall possess the right of origin- 
ating bills, except in the cases before mentioned. 

" Sect. 13. Every bill which shall have passed the House 
of Eepresentatives and the Senate, shall, before it becomes a 
law, be presented to the President of the United States for 
his revision. If, upon such revision, he approve of it, he shall 
signify his approbation by signing it. But if, upon such re- 
vision, it shall appear to him improper for being passed into 



( 129 ) 

a law, he shall return it, together with his objections against 
it, to that House in wliich it shall have originated ; who shall 
enter the objections at large on their Journal, and proceed to 
reconsider the bill. But if, after such reconsideration, two- 
thirds of that House shall, notwithstanding the objections of 
the President, agree to pass it, it shall, together with his ob- 
jections, be sent to the other House, by which it shall like- 
wise be reconsidered, and if approved by two-thirds of the 
other House also, it shall become a law. But, in all such cases 
the votes of both Houses shall be determined by yeas and 
nays ; and the names of the persons voting for or against the 
bill shall be entered in the Journal of each House respectively. 
If any bill shall not be returned by the President within seven 
days, after it shall have been presented to him, it shall be a 
law, unless the legislature, by their adjournment, prevent its 
return, in which case it shall not be a law. 

" Art. YII. — Sect. 1. The legislature of the United 
States shall have the power to lay and collect taxes, duties, 
imposts and excises; 

" To regulate commerce with foreign nations, and among 
the several states; 

" To establish a uniform rule of naturalization throughout 
the United States; 

" To coin money ; 

" To regulate the value of foreign coin ; 

" To fix the standard of weights and measures ; 

" To establish post-offices ; 

" To borrow money, and emit bills, on the credit of the 
United States; 

" To appoint a treasurer by ballot ; 

" To constitute tribunals inferior to the supreme court ; 

" To make rules concerning captures on land and water ; 

" To declare the law and punishment of piracies and fel- 
onies committed on the liigh seas, and the punishment of 
counterfeiting the coin of the United States, and of offences 
against the law of nations; 

" To subdue a rebellion in any state, on the application 
of its legislature; 

" To make war ; 

" To raise armies ; 

" To build and equip fleets ; 

" To call forth the aid of the militia, in order to execute 
the laws of the Union, enforce treaties, suppress insurrec- 
tions, and repel invasions ; and 

" To make all laws that shall be necessary and proper for 
carrying into execution the foregoing powers, and all other 



( 130 ) 

powers vested by this Constitution in the government of the 
United States, or in any department or of&ce thereof. 

" Sect. 2. Treason against the United States shall con- 
sist only in levying war against the United States, or any of 
them; and in adhering to the enemies of the United States, 
or any of them. The legislature of the United States shall 
have power to declare the punishment of treason. No person 
shall be convicted of treason, unless on the testimony of two 
witnesses. No attainder of treason shall work corruption of 
blood, nor forfeiture, except during the life of the person at- 
tainted. 

" Sect. 3. The proportions of direct taxation shall be reg- 
ulated by the whole number of wliite and other free citizens 
and inhabitants of every age, sex, and condition, including 
those bound to servitude for a term of years, and three-fifths 
of all other persons not comprehended in the foregoing de- 
scription, (except Indians not paying taxes;) which number 
shall, within six years after the first meeting of the legisla- 
ture, and within the term of every ten years afterwards, be 
taken in such manner as the said legislature shall direct. 

" Sect. 4. No tax or duty shall be laid by the legislature 
on articles exported from any state ; nor on the migration or 
importation of such persons as the several states shall think 
proper to admit ; nor shall such migration or importation 
be prohibited. 

" Sect. 5. No capitation tax shall be laid, unless in pro- 
portion to the census hereinbefore directed to be taken. 

" Sect. 6. No navigation act shall be passed without the 
assent of two-thirds of the members present in each House. 

" Sect. 7. The United States shall not grant any title of 
nobility. 

"Aet. VIII. — The acts of the legislature of the United 
States made in pursuance of this Constitution, and all treaties 
made under the authority of the United States, shall be the 
supreme law of the several states, and of their citizens and in- 
habitants ; and the judges in the several states shall be bound 
thereby in their decisions, any thing in the constitutions or 
laws of the several states to the contrary notwithstanding. 

"Art. IX.— Sect. 1. The Senate of the United States 
shall have power to make treaties, and appoint ambassa- 
dors, and judges of the supreme court. 

" Sect. 2. In all disputes and controversies now subsist- 
ing, or that may hereafter subsist, between two or more 
states, respecting jurisdiction or territory, the Senate shall 
possess the following powers: — Whenever the legislature or 
executive authority, or lawful agent of any state, in contro- 
versy with another, shall by memorial to the Senate, state the 



( 131 ) 

matter in question, and apply for a hearing, notice of such 
memorial and application shall be given, by order of the Sen- 
ate, to the legislature, or the executive authority, of the other 
state in controversy. The Senate shall assign a day for 
the appearance of the parties, by their agents, before that 
House. The agents shall be directed to appoint, by joint con- 
sent, commissioners or judges to constitute a court for hearing 
and determining the matter in question. But if the agents 
cannot agree, the Senate shall name three persons out of each 
of the several states; and from the list of such persons, each 
party shall alternately strike out one, until the number shall 
be reduced to thirteen; and from that number not less than 
seven, nor more than nine, names, as the Senate shall direct, 
shall, in their presence, be drawn out by lot ; and the persons 
whose names shall be so drawn, or any five of them, shall be 
commissioners or judges to hear and finally determine the con- 
troversy; provided a majority of the judges who shall hear 
the cause agree in the determination. If either party shall 
neglect to attend at the day assigned, without showing suffi- 
cient reasons for not attending, or being present shall refuse 
to strike, the Senate shall proceed to nominate three persons 
out of each state, and the Clerk of the Senate shall strike in 
behalf of the party absent, or refusing. If any of the parties 
shall refuse to submit to the authority of such court, or shall 
not appear to prosecute or defend their claim or cause, the 
court shall nevertheless proceed to pronounce judgment. The 
judgment shall be final and conclusive. The proceedings shall 
be transmitted to the President of the Senate, and shall be 
lodged among the public records, for the security of the par- 
ties concerned. Every commissioner shall, before he sit in 
judgment, take an oath, to be administered by one of the 
judges of the supreme or superior court of the state where the 
cause shall be tried, 'well and truly to hear and determine 
the matter in question, according to the best of his judgment, 
without favor, affection or hope of reward. 

" Sect. 3. All controversies concerning lands claimed un- 
der different grants of two or more states, whose jurisdictions, 
as they respect such lands, shall have been decided or adjusted 
subsequent to such grants, or any of them, shall, on applica- 
tion to the Senate, he finally determined, as near a,s may be, 
in the same manner as is before prescribed for deciding con- 
troversies between different states. 

" Aet. X. — Sect. 1. The executive power of the United 
States shall be vested in a single person. His style shall be, 
'The President of the United States of America,' and his 
title shall be, ' His Excellency.' He shall be elected by bal- 



( 132 ) 

lot by the legislature. He shall hold his office during the 
term of seven years ; but shall not be elected a second time. 

"Sect. 2. He shall, from time to time, give information 
to the legislature of the state of the Union. He may recom- 
mend to their consideration such measures as he shall judge 
necessary and expedient. He may convene them on extraor- 
dinary occasions. In cases of disagreement between the two 
Houses, with regard to the time of adjournment, he may ad- 
journ them to such time as he thinks proper. He shall take 
care that the laws of the United States be duly and faithfullv 
executed. He shall commission all the officers of the United 
States; and shall appoint officers in all cases not otherwise 
provided for by this Constitution. He shall receive ambassa- 
dors, and may correspond with the supreme executives of the 
several states. He shall have power to grant reprieves and 
pardons, but his pardon shall not be pleadable in bar of an im- 
peachment. He shall be commander-in-chief of the army and 
navy of the United States, and of the militia of the several 
states. He shall, at stated times, receive for his services a com- 
pensation, which shall be neither increased nor diminished 
during his continuance in office. Before he shall enter on the 
duties of his department, he shall take the following oath or 
affirmation: ' I solemnly swear (or affirm) that I will 

faithfully execute the office of President of the United States 
of America.' He shall be removed from his office on impeach- 
ment by the House of Eepresentatives, and conviction, in the 
supreme court, of treason, bribery, or corruption. In case of 
his removal, as aforesaid, death, resignation, or disability to 
discharge the powers and duties of his office, the President of 
the Senate shall exercise those powers and duties until another 
President of the United States be chosen, or until the disa- 
bility of the President be removed. 

" Aet. XI. — Sect. 1. The judicial power of the United 
States shall be vested in one supreme court, and in such in- 
ferior courts as shall, when necessary, from time to time, be 
constituted by the legislature of the United States. 

" Sect. 2. The judges of the supreme court, and of the 
inferior courts, shall hold their offices during good behavior. 
They shall, at stated times, receive for their services a com- 
pensation, which shall not be diminished during their con- 
tinuance in office. 

" Sect. 3. The jurisdiction of the supreme court shall ex- 
tend to all cases arising under laws passed by the legislature 
of the United States ; to all cases affecting ambassadors, other 
public ministers and consuls; to the trial of impeachments 
of officers of the United States ; to all cases of admiralty and 
maritime jurisdiction ; to controversies between two or more 



( 133 ) 

states, (except such as shall regard, territory or jurisdiction;) 
between a state and citizens of another state ; between citizens 
of different states ; and between a state, or the citizens thereof, 
and foreign states, citizens, or subjects. In cases of impeach- 
ment, cases affecting ambassadors, other public ministers and 
consuls, and those in which a state shall be party, this juris- 
diction shall be original. In all other cases before mentioned, 
it shall be appellate, with such exceptions, and under such 
regulations, as the legislature shall make. The legislature 
may assign any part of the jurisdiction above mentioned, (ei.- 
eept the trial of the President of the United States,) in the 
manner and under the limitations wliich it shall think proper, 
to such inferior courts as it shall constitute from time to 
time. 

" Sect. 4. The trial of all criminal offences (except in 
cases of impeachment) shall be in the state where they shall 
be committed ; and shall be by jury. 

" Sect. 5. Judgment, in cases of impeachment, shall not 
extend farther than removal from office, and disqualifica- 
tion to hold and enjoy any office of honor, trust, or profit, 
under the United States. But the party convicted shall never- 
theless be liable and subject to indictment, trial, judgment, 
and punishment according to law. 

" Aet. XII. — No state shall coin money ; nor grant letters 
of marque and reprisal : nor enter into any treaty, alliance, or 
confederation ; nor grant any title of nobility. 

'' Akt. XIII. — Xo state, without the consent of the legisla- 
ture of the United States, shall emit bills of credit, or make 
anything but specie a tender in payment of debts; nor lay 
imposts or duties on imports ; nor keep troops or ships of war 
in time of peace; nor enter into any agreement or compact 
with another state, or with any foreign power ; nor engage in 
any war, unless it shall be actually invaded by enemies, or the 
danger of invasion be so imminent as not to admit of a delay 
until the legislature of the United States can be consulted. 

" Aet. Xiy. — The citizens of each state shall be entitled to 
all privileges and immunities of citizens in the several states. 

" Aet. XV. — Any person charged with treason, felony, or 
high misdemeanor in any state who shall flee from justice, 
and shall be found in any other state, shall, on demand of 
the executive power of the state from which he fled, be de- 
livered up and removed to the state having jurisdiction of 
the offence. 

" Aet. XVI. — Full faith shall be given in each state to the 
acts of the legislatures, and to the records and judicial pro- 
ceedings of the courts and magistrates of every other state. 



( 134 ) 

" Art. XVII. — New states lawfully constituted or estab- 
lished within the limits of the United States may be admitted, 
by the legislature, into this government; but to such admis- 
sion the consent of two-thirds of the members present in each 
House shall be necessary. If a new state shall arise within the 
limits of any of the present states, the consent of the legisla- 
tures of such states shall also be necessary to its admission. If 
the admission be consented to, the new states shall be admitted 
on the same terms with the original states. But the legisla- 
ture may make conditions with the new states concerning the 
public debt which shall then be subsisting. 

'' Art. XVIII. — The United States shall guaranty to each 
state a republican form of government; and shall protect 
each state against foreign invasions, and, on the application 
of its legislature, against domestic violence. 

" Art. XIX. — On the application of the legislature of two- 
thirds of the states in the Union, for an amendment of this 
Constitution, the legislature of the United States shall call 
a convention for that purpose. 

" Art. XX. — The members of the legislatures, and the ex- 
ecutive and judicial officers of the United States, and of the 
several states, shall be bound by oath to support this Consti- 
tution. 

" Art. XXI. — The ratification of the conventions of 

states shall be sufficient for organizing this Constitution. 

" Art. XXII. — This Constitution shall be laid before the 
United States in Congress assembled, for their approbation; 
and it is the opinion of this Convention, that it should be 
afterwards submitted to a convention chosen in each state, 
under the recommendation of its legislature, in order to re- 
ceive the ratification of such convention. 

" Art. XXIII. — To introduce this government, it is the 
opinion of this Convention, that each assenting convention 
should notify its assent and ratification to the United States 
in Congress assembled; that Congress, after receiving the 

assent and ratification of the conventions of states, 

should appoint and publish a day, as early as may be, and 
appoint a place, for commencing proceedings under this Con- 
stitution; that, after such publication, the legislatures of 
the several states should elect members of the Senate and di- 
rect the election of members of the House of Eepresenta- 
tives; and that the members of the legislature should meet 
at the time and place assigned by Congress, and should, as 
soon as may be after their meeting, choose the President of 
the United States, and proceed to execute this Constitution, 



THE CONSTITUTION IN DETAIL. 



CONSIDERATION OF THE EOUGH DRAFT. 

The preamble of tlie rough draft is the preamble of 
the Pincknej draft, and is like the preamble of the 
Confederation, except that the people of the states 
are named instead of the states as the constituting 
power. 

Article I of the rough draft, that the style of the 
government shall be the United States of America, 
is in the Pinckney draft. Article I, and is furthermore 
from the Confederation, Article I. Article II of the 
rough draft that the government consist of supreme 
legislative, executive and judiciary appears in Pinck- 
ney draft. Article I, conforming to the first resolu- 
tion of the convention in convention. Article III of 
the rough draft, that legislative power be vested in 
Congress of two bodies, the house of representatives 
and the senate, each having a negative on the other, 
and meeting on the first Monday in every December, 
is the Pinckney draft. Article II, conforming to the 
2nd resolution of the convention in convention, and 
also derived from the Confederation and the several 
states; the legislature of the Confederation being 
entitled " Congress," the title " House of Representa- 
tives " best characterizing the popular branch of Con- 
gress and being the name thereof in several states, 
and " Senate ■' being the name of the upper branch 
in most of the states. By the Confederation, Article 
V, Congress assembled on the first Monday of, not 
December, but November. Bj the theory of the two 
branches each had the right of negative on the other, 
which right was the ground of alternative interpreta- 
tion as observed. 



( 136 ) 

Article IV, sections 1, 2, 3, 4, 5, and 6, that rep- 
resentatives be chosen by the people of the several 
states every two years, with qualifications of electors, 
qualifications of representatives, the number of mem- 
bers at first and how regulated in future; and 
respecting bills for revenue; and that the house of 
representatives have sole power of impeachment and 
choose its speaker and other officers ; and that vacan- 
cies be supplied by the executives of the respective 
states is all Pinckney draft, Article III, conforming 
to the 3d resolution of the convention in convention.^ 

That the house of representatives have sole power 
of impeachment and choose their speaker and other 
officers was furthermore according to Blackstone.^ 

Article V, sections 1, 2, 3 and 4 that senators be 
chosen by the state legislatures, two for each state, 
each with one vote, with their classification and their 
qualifications; and that the senate choose its presi- 
dent and other officers, and vacancies be supplied by 
the executives of the respective states is all Pinckney 
draft, Article IV, conforming to resolution 4 of the 
convention in convention. That the senate choose its 
own president and other officers w^as further accord- 
ing to the rule in the house of representatives, rather 
than according to the precedents." But this was to 
be changed as will be observed. The classification of 
senators was according to the constitution of New 
York. It may be observed here that the Pinckney 
draft accorded with the Virginia plan in choosing the 
senate or the second branch by the first brq^nch or the 
House of Delegates, as the latter was called in the 
state of Virginia ; and this, together with the next ar- 
ticle of this draft, would appear to imply some pur- 

1 The clause in section 4 that the ratio of representation be 1 to 40,000, in- 
habitants is the ratio of the compromise report of committee, of July 5th, 
heretofore referred to, adopted by convention, and used as a basis for estimat- 
ing the present membership of the House of Representatives, as set out in 
section 3. 

2 Black. Com., book 4, chap. 19, p. 260; book 1, chap. 2. p. 180. 

3 In Great Britain the presidins officer of the House of Lords was appointed 
by the King's commission. Black. Com., book 1, chap. 2, p. 181. 



( 137 ) 

pose in the Pinckney draft, as in the Virginia plan, to 
make the senate dependent upon the popular branch 
of the legislature, as was even then the tendency of 
Great Britain. 

Article VI, sections 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10, 
are the Pinckney draft in its order, with some addi- 
tions ; thus where by that draft each state prescribed 
the time and manner of holding elections for the pop- 
ular branch of the legislature— leaving that branch 
to prescribe for the senate, according to Article X 
of the Pinckney draft— by the rough draft of the con- 
vention each state was to prescribe for elections for 
hotli branches and was to prescribe the place as well 
as the time and manner of elections ; but the legisla- 
ture of the United States might alter such provisions/ 
Then it was inserted in conformity to resolution 23 
of the convention that the legislature of the United 
States might establish qualifications of property for 
members of each house.-^ The several sections 3, 4, 
5, 6, 7 are according to Great Britain, being parlia' 
mentary rules familiar, it may be submitted, to the 
legislatures of the several states.^ Some of these, 
as the privileges of members from arrest and of free 
dom of speech— to be found in the Confederation- 
are very ancient indeed/ Section 8 appears in the 
constitution of South Carolina, at least, among the 
several states. Section 9 conforms to resolutions 3 
and 4 of the convention ; and section 10 is according 
to Article V of the Confederation. Section 11, Ar- 
ticle VI, of the enacting style of laws is parliamentary 
form, for the house of representatives and senate ; 
and section 12, that each house originate bills, con- 
forms to resolution 5 of the convention, excepting on 
bills for revenue, as observed. Section 13 is the 
Pinckney draft in its order— the last paragraph of 
Article V thereof— only adding that in passing laws 
over the president's veto the ayes and nays be entered 

1 Section 1. 3 Black. Com., book 1, chap. 2, pp. 181, 163, 164, 165. 

Section 2. 4 Crabbe's History of English Law. 



( 138 ) 

on the Journal. Its further precedent appears in the 
constitution of New York, whence its substance was 
drawn for the resolution of the convention thereon, 
as has been observed. 

Thus far it may be noted the constitution is drafted 
on the Pinckney draft, conforming it to the resolu- 
tions of the convention in convention. The Pinckney 
draft — which it will be observed was the only draft in 
detail submitted to the convention at any time, was 
itself according to the Confederation and the constitu- 
tion of Great Britain, and thence the constitutions of 
the several states. But in conforming to the resolu- 
tions of the convention the draft was interpretable to 
the Jersey plan. So it was in following the Confedera- 
tion in details ; and as its further provisions of detail 
from the constitutions of Great Britain or the several 
states would affect the interpretation only in details, 
the draft thus far would appear to be interpretable 
to the Jersey plan as well as conformable to the reso- 
lutions of the convention. 

Article VII, section 1 of the rough draft of the con- 
vention, on the legislative powers, which is next in or- 
der : clause 1, that the legislature of the United States 
shall have power to lay and collect taxes, duties, im- 
posts and excises, is next in order of the Pinckney 
draft, being article 6, clause 1 thereof; and accords 
^'ith the power of taxation of Great Britain and the 
several states. The principal forms of taxation in 
Great Britain were taxes, duties, imposts and excises. 
It is stated in the Wealth of Nations, in 1776, that 
''the land-taxes, the stamp-duties and the different 
forms of customs and excises constitute the four prin- 
cipal branches of British taxes. "^ And the same ap- 
pears from Blackstone.2 But land-taxes were the 
main form of those taxes which were apportioned to 
the counties of England, the quotas of each being then 

1 Adam Smith's Wealth of Nations, published 1776, book 5, chap. 3, Thorold 
Rogers's edition, vol. 2, p. 535-6. 
^ Black. Com., book 1, chap. 8. 



( 139 ) 

assessed on and collected from the inhabitants 
thereof, their real and personal property ; and stamp- 
duties, customs and excises were the main forms of 
those taxes which extended all one and undivided or 
unapportioned throughout the kingdom; the appor- 
tioned taxes being called taxes, or, strictly, direct 
taxes, because, it may be submitted, they were taxes 
on the several counties direct instead of only indirect 
or consequential as were those extending throughout 
all the counties, that is throughout the kingdom ; and 
because moreover, they were administered to the in- 
habitants of the counties whereby the money flowed 
directly into the national treasury instead of through 
and by way of the treasuries of the several counties, 
as appears to have obtained in ancient times; and 
thf»se taxes extending throughout the kingdom being 
called duties, perhaps in contra-distinction from 
taxes or direct taxes, which were the older.- 

From England the same obtained in the several col 
onies, and thence in the several states, Great Britain 
having attempted to levy apportioned taxes by requi- 
sition to the several colonies, and having also laid du 
ties by stamps and on imports throughout all the col- 
onies; and the several colonies having laid and col- 
lected direct taxes and also duties on imports and 
excises.^ 

But this could also be interpreted to the Jersey 
plan. As observed, that plan offered, in two para- 
graphs, the two kinds of revenue recited in the Declar- 
ation of Rights as having been attempted by Great 
Britain on the several colonies ; in one paragraph, 
requisitions with authority to Congress to direct their 
collection in non-complying states and pass acts di- 

1 Dowell's History of Taxes and Taxation in England. Gneist's Constitu- 
tional History of England, vol. 2, p. 4. Black. Com., book 1, chap. 8. 

2 In the Observations on the Commerce of the American States, by Lord 
John Sheffield, 1784, London, he says, at page 241: "Before the war the expenses 
of the provincial governments of America were defrayed by a poll-tax and 
assessment on estates; and by an impost on exports and imports. The mode of 
taxation differs, however, in the several provinces. In New England, a general 
excise has been laid on all foreign articles." 



( 140 ) 

recting the same, and in the other i)aragraph duties 
by stamps and on imports and by postage. Taxes or 
direct taxes could be interpreted to the former para- 
graph, duties and imposts to the latter, thus leaving 
only excises in difference, which having been of com- 
paratively less importance, seemingly, do not appear 
in the Declaration of Rights. 

Power to regulate commerce with foreign nations 
anrl among the several states was from the Pinckney 
draft in order, and also the Jersey plan. It also was 
poAver which Great Britain sought to exercise over the 
several colonies and was recited in the Declaration of 
Rights and other papers and addresses of the period; 
the colonies having admitted the right of Great 
Britain to exercise this power in good faith and not 
for the purposes of revenue, but insisting that it was 
made a pretense for taxation without consent. 

Throughout those proceedings prior to the Revolu 
tion the regulation of commerce external to the sev 
eral colonies, that is among them and with foreign 
nations, was constantly coupled with taxation 
throughout the colonies by stamp duties, duties on im- 
ports — as, for instance, the duty on tea — and postage ; 
and their constant association continuing throughout 
all the proceedings of the intervening period, in Con 
gress, in the Annapolis convention, etc., until they 
were taken up together in the Pinckney draft and the 
Jersey plan and inserted in the Constitution, serve to 
indicate how they represented the power of Great 
Britain over the several colonies passing, in consider- 
ation of representation therein, to the American 
Union. The necessity for these powers has been usu- 
ally recited as a commercial necessity. So the mean- 
ing attached to direct taxes has heen a commercial, 
econofriic meaning. No doubt the commercial point of 
view was common enough ; but it would appear that 
political conceptions dominate commercial views 
in the proceedings leading up to the adoption of 



( 141 ) 

the Constitution as certainly as in those leading to 
dissolving allegiance to Great Britain ; and that the is- 
sues of taxation and regulation of commerce between 
Great Britain and the several colonies were merelj 
commercial, pecuniary, has always been denied. 

Power to esablish a uniform rule of naturalization 
throughout the United States appears in the Pinck- 
ney draft, and was also olfered by the Jersey 
plan.i Power to coin money, and the next -~ 
to regulate the value of foreign coin— appear 
in the Pinckney draft, from article 9 of the Confedera- 
tion and Union, that " the United States in Congress 
assembled shall have sole and exclusive right and 
power of regulating the alloy and value of coin struck 
by their own authority or by that of the respective 
states ;" but Congress shall neither '' coin money nor 
regulate the value thereof" without the assent of 
nine states. This power was then in exercise. Octo- 
ber 16, 1786, an ordinance was passed by Congress for 
establishing a mint for regulating the alloy and value 
of coin. Power to fix the standard of weights and 
measures appears in the Pinckney draft, from article 
9 of the Confederation that Congress shall have sole 
and exclusive right and power of " fixing the standard 
of weights and measures throughout the United 
States." This power was in exercise. July 6, '85 Con- 
gress resolved that the money unit of the United 
States of America should be one dollar.^ Power to es 
tablish post-offices appears in the Pinckney draft 
from article 9 of the Confederation that Congress 
shall have power " establishing and regulating post- 
ofiices from one state to another throughout the 
United States." July 26, '75, Congress exercised this 
power making provision for a postmaster general and 
deputies and for a line of posts and cross-posts. It 
Avas among the first powers requiring exercise by the 
Continental Congress and thence adopted into the 

1 Resolution 10. 

2 See Journal of Congress of that date, and of August 8, 1786. 



( 142 ) 

Confederation. September 4, '86, and November 1, 
'86, appear instances of contracts for conveying mails. 
Power to borrow money and emit bills on the credit 
of the United States appears in the Pinckney draft, 
from article 9 of the Confederation authorizing Con- 
gress to appoint a " committee of the states " " to bor- 
row money or emit bills on the credit of the United 
States ;'- but Congress should not " emit bills nor bor- 
row money on the credit of the United States " except 
with the assent of nine states. And article 12 of the 
Confederation provides that " all bills of credit 
emitted, moneys borrowed and debts contracted by or 
under the authority of Congress before the assembling 
of the United States in pursuance of the present Con 
federation shall be deemed and considered as a charge 
against the United States, for payment and satisfac- 
tion whereof the said United States and the public 
faith are hereby solemnly pledged." This was not 
only one of the powers exercised earliest by Congress, 
but one exercised most frequently. The Journal 
abounds with instances. June 22, '75, Congress re- 
solved that a sum not exceeding two million Spanish 
milled dollars be emitted by Congress in bills of credit 
for the defense of America, and that the Twelve Con 
federated Colonies be pledged for the redemption 
thereof. And the form of these bills was resolved on 

as follows : '" Continental Currency No. . 

Dollars. This bill entitles bearer to receive 



Spanish milled dollars or the value 

thereof in gold or silver, according to the resolution 
of Congress held at Philadelphia the 10th of May, 
1775." And as observed, this power thus exercised by 
the Continental Congress was adopted into the Con 
federation, not only prospectively, but retrospectively 
as well, by article 12. 

Likewise from the very first. Congress exercised the 
power adopted thence in the Confederation and 
Union of making bills of credit emitted by authority 



( 143 ) 

of Congress a lawful tender in the payment of debts ; 
recommending to the several states to provide ways 
and means therefor. According to the Confederation 
and Union these recommendations were orders and di- 
rections to the several states, for the several states 
were to execute and administer the legislation of the 
United States in Congress assembled. January 14, 
'77, Congress resolved that all bills of credit emitted 
by authority of Congress should be lawful tender in 
the payment of debts, and the several states were 
recommended to pass laws to that end and for the 
punishment of offenders against such laws. So with 
the resolutions of December 27, '76 and January 11, 
'76. March 16, '81 and March 20, '80 the several states 
were recommended by resolutions of Congress to 
amend and revise their laws declaring bills of credit 
emitted by authority of Congress to be lawful tender. 
July 29, '75, and December 26, '76, appear resolutions 
making the bills of credit of Congress receivable in 
payment of quotas of taxes of the several states. 

Power to appoint a treasurer by ballot appears in 
the Pinckney draft, its further precedent being it 
would seem, article 9 of the Confederation conferring 
power on Congress to appoint besides the "committee 
of the states" "such other committees and civil officers 
as may be necessary for managing the general affairs 
of the United States ;" under which power a cabinet 
Avas then exercising office. December 23, '84, Con- 
gress resolved upon the erection of houses for Con- 
gress and for the executive offices, the president, the 
secretary of foreign affairs, the secretary of war, of 
marine, and the offices of the treasury. July 30, '79, 
Congress had established a board of treasury and reg- 
ulated Che same September 11, '81. Power to appoint 
a single treasurer was some change. July 26, '75, 
Congress had provided for postmaster general and 
deputies as observed, and February 7, '81, had re 
solved upon the appointment of a superintendent of 
linance, a secretary of war and a secretary of marine. 



( 144 ) 

Power to constitute tribunals inferior to the sv.- 
preme court appears in the Pinckney draft, not from 
the Confederation, nor was it in the Jersey plan, 
which offered no inferior tribunals as observed; but 
it had been explicitly resolved upon by the convention 
in convention. 

Power to make rules concerning captures on land 
and water apjjears in the Pinckney draft in the ex- 
pression of power " to make rules for captures from 
an enemy;" from article 9 of the Confederation con- 
ferring power on Congress " of establishing rules for 
deciding in all cases what captures on land and water 
shall be legal, and in what manner prizes taken by 
land or naval forces in the service of the United States 
shall be divided or appropriated ;" and also conferring 
power ''to establish courts for receiving and determin- 
ing finally appeals in all cases of captures." Exer 
cised November 25, '75, by the Continental Congress 
recommending to the several legislatures to erect 
courts of justice or give jurisdiction to the courts in 
being to determine concerning captures, appeals to 
be allowed to Congress in all cases; and adopted 
thence into the Confederation. December 4, '81, Con- 
gress enacted an ordinance declaring what captures 
on water should be lawful. January 15, '80, Congress 
established courts of appeal in cases of captures, 
appointed and commissioned three judges, and a 
register for the court, trials to be according to the law 
of nations and not by jury. May 23,'80, Congress es- 
tablished rules and directions to courts of appeal in 
captures. January 8, '82, and February 26, '82, the 
same were amended. November 25, '75 Congress hav- 
ing provided for appeals in cases of captures from the 
courts of the several colonies to Congress, September 
30, '70, an appeal from New Hampshire to Congress in 
a case of capture was entertained, and a committee 
appointed to hear and determine the same.^ 

1 As to Congress's exercise of power over the court of appeals in cases of 
captures, see Carson's History of the Supreme Court of the United States, pp. 
13-14. 



( 145 ) 

Power to declare the law and punishment of pira- 
cies and felonies committed on the high seas, and the 
punishment of counterfeiting the coin of the United 
States, and of offenses against the law of nations : 
these appear in Pinckney draft, but they are three 
separate powers; the first appears from article 9 of 
the Confederation empowering Congress to appoint 
courts for the trial of piracies and felonies committed 
on the high seas; exercised April 5, '81, by ordi- 
nance appointing courts for trial of piracies and fel- 
onies and prescribing punishment therefor ; the same 
being amended March 4, '83. The second of these, 
Congress had exercised by recommending to the 
several legislatures of the United Colonies to pass 
laws to punish counterfeiting continental bills of 
credit or whomever should knowingly pass the same, 
June 24, '76. June 19, '80, Congress offered a reward 
of |2,000 to whomever should prosecute to conviction 
au}^ person for counterfeiting. The third of these, 
Congress exercised November 17 and 23, '81, recom- 
mending to the several states to provide punishment 
for offenses against the law of nations, enumerating 
particularly among such offenses, ( 1 ) the violation of 
safe conduct and passports; (2) acts hostile to those 
in amity or league with the United States ; (3) infrac- 
tions of immunities of ambassadors and other public 
ministers ; ( 4 ) infractions of treaties and conventions 
of the United States ; and also recommending the sev- 
eral states to erect tribunals or vest existing ones with 
the power to decide offenses against the law of nations 
not in the foregoing enumeration. May 30, '83, ap- 
pears a resolution of Congress requiring the several 
states to remove obstacles against British creditors 
recovering debts by virtue of the treaty with Great 
Britain. 

Power to subdue a rebellion in any state on the ap- 
plication of its legislature appears in the Pinckney 
draft, and w^as also included in the Jersey plan in 



( 146 ) 

some degree, by its resolution offering authority to 
coerce states or bodies of men therein, who should op- 
pose the execution of the acts and treaties of the 
United States. It was required by the experience of 
Shays' rebellion in Massachusetts, occasioning the 
memorial of the government thereof to Congress con- 
cerning aid for suppressing same, received by Con- 
gress and entered in the Journal March 9, '87, and re- 
ferred to committee. Power to make war appears in 
the Pinckney draft — but among the powers conferred 
on the Senate alone, rather than among those of both 
houses — from article 9 of the Confederation ; exercised 
June J 3, '76, when Congress appointed a board of war 
at the opening of the Revolution. Power to raise 
armies; from the Pinckney draft; exercised by Con- 
gress resolving December 27, '76 vesting General 
Washington i^dth full and ample power to raise and 
collect from 4ny and all of the United States battal- 
ions of infantry, regiments of light horse; of artillery 
and engineers; in addition to those already voted by 
Congress ; to apply to any of the states for aid of the 
militia as he should deem proper ; this power to reside 
in him for six months unless sooner determined by 
Congress. This power it will be observed was to raise 
armies throughout the United States regardless of the 
several states and hence was an indirect levy only 
upon the several states, in contrast with calling out 
state militia, which was a direct levy on the several 
states.^ Power to build and equip fleets: from the 
Pinckney draft, and Confederation article 9, that Con- 
gress have power to " build and equip a navy;" exer- 
cised November 28, '75 by the rules of Congress issued 
then for the regulation of the navy of the United Col- 
onies of North xlmerica then in course of equipment. 
Power to call forth the militia to execute the laws, en- 
force treaties, suppress insurrections and repel in- 
vasions, from the Pinckney draft, and Confederation 

1 Thus troops, ;iike taxes, are levied from the several states directly and 
indirectly. 



( 147 ) 

article 9, that Congress have power to agree upon the 
number of land forces and make requisition from each 
state for its quota in proportion to the number of 
white inhabitants of each state, which requisition it 
was provided should be binding; and the quota - shall 
march to the place appointed and within the time 
agreed on in Congress." Congress also had power to 
appoint a commander in chief by the Confederation 
and all general officers above colonels. Of the pur- 
poses for which the militia are to be called out, that to 
enforce treaties arises from the difficulties growin<^ 
out of the treaty with Great Britain; that to suppress 
insurrections was occasioned by Shays' rebellion in 
86, and that to repel invasions by the invasion of 
Great TJiitam, as it was called after the Declaration 
of Independence, to put down the Kevolution. 

Power to make all laws that shall be necessary and 
proper for carrying into execution the foregoing 
powers, and all others vested by this Constitution in 
the government of the United States, or any depart- 
ment or officer thereof, appears in the Pinckney draft 
providing power "to make all laws for carrying the 
foregoing powers into execution." Of this it may be 
observed, as will be more dwelt on later, that by tlx- 
Confederation and Union the laws of the United 
States of America were made by the United States in 
Congress assembled to be executed and administered 
by the several states, the latter being for the execution 
and adininistration of the laws of the former, subject 
to the authority and direction of Congress, and the 
conduct of the government of the United States of 
America requiring the concurrent action of both Con- 
gress a-.d the several states. But the latter failing of 
their part, neglectfully or wilfully, the failure of ^the 
Confederation and Union was the failure of the exe- 
cution and administration of the laws thereof, and 
this occasioning the convention of 1787, it followed 
that its chief work was the establishment for the 
Union of agencies of its own to execute and adminis- 



( 148 ) 

ter the laws of Congress, whereby the government of 
the United States would become independent of the 
several states. These agencies were the executive and 
judiciary departments. Yet the Confederation and 
Union had been interpreted that the right of Congress 
to make the laws of the United States implied their 
right to enforce their execution and administration, 
and to make all laws necessary and proper to that end. 
An instance of the former is Mr. Madison's claim of 
the inherent and implied right of the Union to coerce 
the several states to execute and administer the laws 
of Congress; and an instance of the latter is the 
ordinance of Congress of December 31, '81, for ths in- 
corporation of the Bank of North America, which act 
initiated the controversy between the Union and 
the several states respecting national banking, ex- 
tending over fifty years. But whether or not hj the 
Confederation and Union Congress had power to 
make all laws necessary and proper for carrying into 
execution the foregoing powers and all others vested 
in the government of the United States would appear 
of no moment, for precedent thereof is found in the 
purposes of Congress by the Confederation, and in 
the powers of the legislatures of Great Britain and the 
several stal(!s, and accordingly was conferred hj iJie 
resolutions of the convention. 

Thus all the legislative powers of the rough draft 
of the Constitution appear in tlie Pinckney drnft, 
most of them having been vested in or exercised by 
Congress by the Confederation and the others appear- 
ing in the Constitutions of Great Britain and the sev- 
eral states. As, by the Confederation Congress had the 
interpretation of their own powers, their exercise of 
power not expressly vested in them by the Confedera- 
tion, perliaps vested those powers in Congress by con- 
struction of the Confederation. If so, the Jersey plan 
would differ from the national plan only in interpre- 
tation, for it offered all the powers vested in Congress 



( 149 ) 

by the Ooufederation and also the new powers; but 
the interpretation and construction of all these pow 
ers the Jersey plan would give to the several states 
rather than to the United States.^ But though the legis- 
lative powers of the rough draft were interpretable to 
the federal plan, it is manifest that they were interpre- 
table to the national plan only so far as the particular 
powers conferred, beyond those vested in Congress by 
the Confederation, extended to all cases for the gen- 
eral interests of the Union, and where the separate 
states were incompetent or their individual legisla- 
tion might interrupt the harmony of the Union : that 
is so far only as the powers of Congress by the rough 
draft conformed to the purposes of Congress by the 
Confederation; to the powers of the legislatures of 
Great Britain and of the several states ; and were the 
legislative powers of perfect union. 

Article 7, section 2, of the rough draft respecting 
treason is according to the Pinckney draft in its or- 
der — excepting only the consequences of forfeiture 
and corruption of the blood — having been theretofore 
exercised by Congress, and being moreover, including 
the consequences of forfeiture and corruption of the 
blood, in Blackstone.^ June 24, '76, Congress re- 
solved "that all persons residing in any of the United 
Colonies and deriving protection from its laws owe 
allegiance to the said laws and are members of such 
colony ;" " and all members of any of the United Col- 
onies who shall be adherents to the king of Great Brit- 
ain giving him aid or comfort shall be deemed guilty 
of treason." Perhaps this is the only provision of the 
rough draft beyond those contained in the resolu- 
tions of the convention requiring difference of con- 
struction between the federal and the national plans. 
It will be observed that in the rough draft and the 

1 There is an exception here in the power to constitute tribunals inferior to 
the supreme court, which the Jersey plan did not offer, but the difference in 
this respect appeared in the proceedings of the convention prior to the refer- 
ence to the committee of detail, as observed. 

a Black. Com., book 4, chap. 6. pp. 81-2; book 4, pp. 356-7, 382-0. 



( 150 ) 

Pinckney draft the phrase " the United States or any 
of them," serves to consider the states jointly or sev- 
erally, wherefore treason, being directed against the 
sovereign, might be interpreted against the states 
jointly or severally. 

Article 7, section 3, is the Pinckney draft in order, 
conforming to resolution 9 of the convention, the 
Pinckney draft having proposed direct taxation ac- 
cording to the number of free inhabitants only, that 
is not including slaves, which was according to the 
Virginia plan in its second alternative, as observed. 
Article 7, section 4, that no tax shall be laid on ex- 
ports or on the importation of slaves, nor shall their 
importation be prohibited, is the Pinckney draft in or- 
der as to exports. So is section 5 that no capitation- 
tax shall be laid except according to the census ; and 
section 6 that no navigation act be passed without the 
assent of two-thirds of each house. These three sec- 
tions, 4, 5 and 6, were not questioned between the 
United States and the several states, but between the 
North and South. The South wanted sections 4 and 
5, to obtain which they sought to impose section 6 on 
the North. This is shown by the reference of the 
three sections together to a grand committee ilugust 
22, and report therefrom August 24, and its adoption 
August 25 and 29. It appears in the debates of those 
dates, and has always been so recognized.- These 
three provisions arose from the controversy of the 
period rather than .from precedent. The navigation 
act, however, was a British regulation of commerce 
that all commerce should be carried in British bot 
toms, with the captain and three-fourths of the crew 
British.^ Capitation taxes were taxes whereby rev- 
enue was derived on account of slaves by the Roman 
empire, and they may have been in use in slave states. 
The Roman empire apportioned taxes to the prov- 

1 See page 189 hereof, and Fiske's Critical Period of American History. 

2 Black. Com., book 1, chap. 13, pp. 418-19; Crabbe's History of the English 
Law. 



( 151 ) 

inces first by requisition administered there, later the 
empire administering them, assessing them on and 
collecting them from their inhabitants, their real and 
persona] property. Such taxes were called direct 
taxes, the main forms being land-taxes, capitation- 
taxes and poll-taxes, and in the capitation were in- 
cluded slaves.^ 

Article 7, section 7, that the United States grant no 
title of nobility is the Pinckney plan in order, from 
Confederation article 6, first paragraph, being deemed 
of the essence of republican form of government. Ar 
tide 8 on the supremacy of the acts and treaties of the 
United States is the Pinckney draft in order, con- 
forming to resolution 7 of the convention, from the 
Confederation as aforesaid.^ In the Pinckney draft 
also appears the word " constitution " replacing the 
words " articles of union " according to the constitu- 
tions of the several states and of Great Britain ; and 
Blackstone speaks of the charters of the several col- 
onies as their " constitutions." ^ 

Article 9, section 1, that the senate shall have power 
to make treaties, appoint ambassadors and judges of 
the supreme court is the Pinckney draft in order, 
which included also power to declare war. By the 
Confederation all these powers belonged to Congress; 
by the British constitution to the executive;* yet not 
wholly to the executive according to the interpreta- 
tion of the British Constitution of that day. By the 
rough draft it will be observed that these great powers 
were left with the branch composed according to Con- 
gress by the Confederation and the Jersey plan, ex 
cepting the war power, which was conferred on both 
branches. Article 9, section 2, of controversies be- 

1 History of the Decline and Fall of the Roman Empire, Edward Gibbon, 
first publication 1776, 17?l-2, chap. 17; Victor Duruy's History of Rome, tianslated 
by Ripley & Clurke, vol. 6, p. 252; vol. 2, p. 239. Gibbon's authority on Capita- 
tion Taxes is noted in Cooley on Taxation, p. 25, note 2. 

2 See page 190, note that the Pinckney draft also contained a direct negative 
on the several states. 

3 Black. Com., Introd., sec. 4, vol. 1, p. 107. 

* Black. Com., book 1, chap. 7, pp. 253, 257, 266-7. 



( 152 ) 

tween states concerning jurisdiction or territory, and 
conferring jurisdiction thereof on the Senate, appears 
in the Pinckney draft next in order, whence drawn 
from the Confederation article 9, where this jurisdic- 
tion was in Congress; but where the Pinckney draft 
had drawn only the substance from the Confederation 
the Constitution draft adopts the entire provision in 
the language of the Confederation. And the latter 
also draws section 3 following, concerning controver- 
sies over lands claimed under grants of different 
states, from the Confederation, conferring jurisdiction 
thereof also on the senate. Both these provisions had 
been theretofore exercised by Congress, upon the oc 
casions of controversies between Pennsylvania and 
Virginia over " Mason's and Dixon's line;" between 
Massachusetts and New York; between citizens of 
Pennsylvania and Connecticut, over the territory of 
Wyoming.^ As early as December 20, '75, Congress re- 
solved that whereas disputes between the inhabitants 
of Pennsylvania and Connecticut on the Susquehanna 
were prejudicial of the United Colonies, they recom- 
mended peace and quiet until a legal decision could be 
had on the said disputes, or until Congress should 
take further order thereon. 

Article 10, section 1, of the executive, is the Pinck- 
ney draft, conforming to resolution 12 of the conven- 
tion. The style " President of the United States of 
America " is suggested by that of the president in the 
Confederation, and the executive in some states was 
called president. Article 10, section 2, is the Pinck- 
ney draft conforming to the same resolution of the 
convention and adding power to convene Congress on 
extraordinary occasions, and in case of disagreement 
of the houses to adjourn them. This section supple 
ments the executive power of Congress by the Con 
federation, which had been executed in some degree 
by the president of Congress, with the power of the 
executives of Great Britain and of the several states — 

J Carson's History of the Supreme Court of the United States. 



( 153 ) 

though the executives of the several states had been 
more or less restricted in consequence of the abuses of 
the crown and crown governors, as observed. Giving 
information of the state of the Union, proposing legis 
lation, convening the houses on extraordinary occa 
sions, adjourning them; and the pardoning power, 
but not in bar of impeachment; were powers of the 
crown.^ Power to appoint and commission officers 
of the United States, to receive ambassadors and cor 
respond with the several state executives were execu- 
tive powers of Congress by the Confederation, as was 
also the power to appoint a commander in chief of the 
army and navy and militia of the several states, which 
commander-in-chief the president now became by the 
Constitution. The Jersey plan had offered executive 
power to appoint federal officers and direct military 
operations, as well as general power to execute the 
laws.^ 

Article 11, section 1, of the judicial power and how 
vested is the Pinckney draft in order, conforming to 
the convention's resolutions thereon; and section 2 
of the term of office and compensation of judges is the 
same. Article 11, section 3, of the jurisdiction of the 
judiciary, is the Pinckney draft in order, with addi- 
tions as to controversies between states or citizens 
thereof and foreign states. Jurisdiction of cases aris- 
ing under the laws of the United States conforms to 
the resolution of the convention, according to Great 
Britain and the several states as aforesaid; but in- 
stead of the further provision of jurisdiction of ques- 
tions touching national peace and harmony, as afore- 
said, appear jurisdiction of particular cases : of these 

1 Black. Com., book 1, chap. 3, pp. 150, 186, 189; book 1, chap. 7, pp. 262, 269; 
book 4, p, 261. 

^ The following were executive powers of Congress by the Confederation: 
to appoint a president; to appoint a commander-in-chief of land and naval 
forces; to direct operations of land and naval forces; to appoint all officers of 
land and naval forces except regimental officers of land forces; to commission 
all officers of the service of the United States; to appoint commissioners and 
civil officers for managing the general affairs of the United States; to send and 
receive ambassadors. 



( 154 ) 

the jurisdiction of cases affecting ambassadors and 
other public ministers and consuls was occasioned by 
cases recently arisen between the United States and 
the several states under foreign treaty as observed, 
and the Jersey plan offered jurisdiction of cases af- 
fecting ambassadors ; jurisdiction of impeachments of 
officers of the United States was also in the Jersey 
plan; cases of admiralty and maritime jurisdiction 
had arisen under the power of Congress over cases 
of captures from the enemy and piracies and felonies 
on the seas, thus occasioning the jurisdiction, and par- 
ticular jurisdiction of captures from the enemy and 
piracies and felonies on the seas was offered by the 
Jersey plan; jurisdiction of controversies between 
states, and states and citizens of other states ; citizens 
of different states ; and a state or citizens thereof and 
foreign states, citizens or subjects was occasioned by 
cases arisen under the jurisdiction of Congress by the 
Confederation as observed; and the Jersey plan had 
offered jurisdiction of cases in which foreigners 
should be interested, in the construction of treaties, 
and of disputes between the United States and any in- 
dividual state — but the latter only respecting ter- 
ritory. Therefore the jurisdiction of particular cases 
conferred by the rough draft having been mostly 
offered by the Jersey plan there was little differ- 
ence between them, it may be submitted, except in 
respect of the general jurisdiction of the constitu- 
tion draft extending to cases arising under the laws 
of the United States. And this jurisdiction might 
be interpreted to the Jersey plan it will be observed, 
by construing the clause as merely introductory to 
or declaratory of the succeeding particular jurisdic- 
tions; as if the section should read, The judiciary 
shall have jurisdiction of cases arising under the laws 
of the United States, to- wit, the following : cases af- 
fecting ambassadors, etc.^ 

1 Such interpretation of the judicial power corresponds to the interpreta- 
tion of legislative power which has always prevailed, confining it to the particu- 
lar powers which follow the general power of Congress, as will be observed. 



( 155 ) 

Article 11, section 4, that trials of crimes be in the 
state where committed and by jury — the jury of the 
vicinage, is the Pinckney draft, and the elemental law 
of Great Britain; as also would appear to be section 

5, concerning the extent of judgment in impeachment 
and the further liability to trial according to law; 
though this latter section was not in the Pinckney 
draft. 

Articles 12 and 13, that no state shall coin money, 
grant letters of marque and reprisal, enter any treaty, 
etc., or grant any title of nobility; or without con- 
sent of Congress emit bills of credit, or make any- 
thing but specie a payment of debts ; lay imposts ; keep 
troops or ships of war in time of peace; enter any 
agreement with another state or foreign power; en- 
gage in war unless invaded, etc., all appear in the 
Pinckney draft article 11, excepting the first that no 
state shall coin money: prior to the Pinckney draft 
all but the first aj)pear in the Confederation, article 

6, except those regarding bills of credit and specie in 
payment of debts. The three last named, respecting 
coining money, bills of credit and specie payments 
were occasioned by the financial experience of the re- 
cent period, the depreciation of the money of the sev- 
eral states.^ 

Article 14, that citizens of each state shall have all 
the privileges of citizens of the several states, and ar- 
ticle 15 for delivering up fugitives from justice, and 
article 16 concerning the faith to be given in each 
state to the acts and proceedings of other states, are 
the Pinckney draft in order, from articles 12 and 13 
thereof, which are from Confederation, article 4, but 
with amendment that faith be extended to the acts of 
legislature of the several states, as well as to their ju- 
dicial proceedings. 

Article 17 is resolution 17 of the convention in con- 
vention, coupled with article 14, the next in order of 
the Pinckney draft, but with some orhissions and ad- 

1 Fiske's Critical Period of American History. 



( 156 ) 

ditions : thus there is omitted from the resolution of 
the convention the clause " whether from a voluntary 
junction of government and territory or otherwise/" 
which omission would perhaps serve to leave it open to 
construction whether states may be admitted, arising 
within the limits of the United States from a junction 
of government and territory otherwise than volun- 
tary;^ and it is added (1) that if a new state arise 
within the limits of any of the present states the con- 
sent of such state should be necessary to its admis- 
sion; and (2) Congress might make conditions with 
new states concerning the public debt then subsisting. 
Of the precedents of these — what appears to be the 
limits of the United States has already been observed : 
two-thirds was the number of each branch to be re- 
quired to amend the Union ; the consent of the legis- 
lature to the admission of any state arising within 
the limits of any of the present states refers to the 
case of Vermont.^ The public debt was then so heavy 
an obligation as to occasion the provision that it might 
be shared by future states as they arose. 

Article 18 of the guaranty to each state of repub- 
lican form of government is resolution 18 of the con- 
vention; resembled, however, by the next in order of 
the Pinckney draft, article 15. Article 19 is article 
16 of the Pinckney draft, the first half thereof, con- 
forming to resolution 19 of the convention. Article 

20 is resolution 20 of the convention, the Pinckney 
draft having made no provision thereupon. Article 

21 is the last of article 16 of the Pinckney draft. Ar 
tide 22 is resolution 21 of the convention with some 
change, substituting the word " constitution " for the 
words " articles of union." Article 23 adds a provis- 
ion beyond the Pinckney draft for .introducing the 
government. 

1 The fall of New France in America to Great Britain with the assistance of 
the several colonies in 1763, was an example to America of the junction of terri- 
tory and government by acts otherwise than voluntary. 

2 Piste's Critical Period of American History, and Bancroft's History of the 
United States. 



( 1<^7 ) 

Thus the first draft of the constitution follows the 
Pinckney draft throughout, conforming it to the reso- 
lutions of the convention in convention, and the 
Pinckney draft follows the Confederation, supple- 
menting it from the constitutions of Great Britain 
and the several states.^ Nor as it would appear 
was much alteration required in the Pinckney 
draft, which it will be remembered was introduced 

1 Of the conforming of the first draft to the resolutions of the convention in 
convention, the following maybe set out in addition: Resolution number 1, 
that the Government of the United States consist of supreme, legislative, exec- 
utive, and judiciary, appears in article 2 of the draft. Resolution 2 of the con- 
vention in convention, that the legislature have two branches, appears in arti- 
cle 3 of the draft. Resolution 3, that the first branch of the legislature be 
chosen by the people, with its provisions for duration of office of members, 
age, compensation, etc., appears in article 4, sections 1 and 2. Resolution 4, that 
the second branch be chosen by individual legislatures, with its provisions for 
duration of office of members, etc., in article 5, sections 1 and 2. Resolution 5, 
that each branch of the legislature originate acts, article 6, section 12, subject 
to resolution 10 on money bills. Resolution 6, concerning the legislative power: 
In the place of the provisions of this resolution, that the national legislature 
should have one general power, appear enumerated particular powers; article 
7, section 1. Resolution 7, declaring the supremacy of the acts and treaties 
of the United States, is ariicle 8, the words "articles of union" being replaced 
by the word "constitution," according to the precedent constitutions. Resolu- 
tion 8, ascertaining how many members in the first branch of the legislature 
each state shall have at first, and that in future the legislature regulate repre- 
sentation according to population, appears in article 4, sections .5 and 4. Reso- 
lution 8 continued, and resolution 9, that direct taxes be proportioned accord^ ng 
to the ratio of the resolutions of April 18, 1783, to be estimated by the census, 
appears in article 7, section 3. Resolution 10, that revenue bills originate in the 
first branch of the legislature to be not altered or amended by the second branch, 
article 4, section 5. Resolution 11, that the several states vote equally in the 
second branch, article 5, section 1. Resolution 12, of the executive, of what it 
shall consist and of its powers, article 10, sections 1 and 2. Resolution 13, of the 
executive negative or veto, article 6, section 13. Resolution 14, of the judiciary, 
the supreme tribunal, and of what it shall consist, article 11, sections 1 and 2, 
and article 9, section 1. Resolution 15, of inferior tribunals, article 11, section 1. 
Resolution 16, of the jurisdiction of the judiciary : Here, instead of jurisdiction 
of cases arising under the laws of the United States, and such other questions 
as involve the national peace and harmony, appears jurisdiction of cases arising 
under the laws of the United States, and then fo low enumerated and particu- 
lar cases: article 11, sections. Resolution 17, of the admission of new stales, 
article 17, but omitting the clause "whether from a voluntary junction of gov- 
ernment and territory or otherwise." Resolution 18, of the guaranty of repub- 
lican government to each state, article 18. Resolution 19, of amending the arti- 
cles of union, article 19. Resolution 20, of oaths to support the Union, article 
20, substituting "constitution" for "articles of Union." Resolution 21, of the 
amendments of the convention to the Confederation, article 22, substituting 
"constitution" for "Confederation." Resolution 22, oi representation in the 
second branch of the legislature, article 5, section 1. Resolution 23, of qualifi- 
cations of property and citizenship: qualifications were not taken up for the 
executive or judiciary, but for the legislature, appear in a. tide 6, section 2, 
article 4, section 2, and article 5, section 3. 



( 158 ) 

with the Virginia plan. The resolutions of the con- 
vention in convention are conformed to in every 
respect save that legislative power, which in the reso- 
lution of the convention was one general powder sup- 
plementing the powder of Congress by the Confedera- 
tion in all cases for the general interests of the Union, 
and where the separate states are incompetent or their 
legislation might interrupt the harmony of the Union 
— that is, one general power conforming to the pur- 
poses of Congress by the Confederation and to the 
legislative powers by the constitutions of Great Brit- 
ain and the several states, — appears in the rough draft 
of the Constitution as several particular powers, 
according to the federal plan : moreover, judicial 
power, which in the resolutions of the convention was 
general power extending to cases arising under the 
laws of the United States, and to such other questions 
as involve the national peace and harmony, becomes in 
the rough draft general power extending to all cases, 
as aforesaid, followed by several particular powers: 
then there is the omission in the provision for the ad- 
mission of new states of the clause respecting the 
manner of their arising, and no qualifications of prop- 
perty or citizenship for the executive or judiciary ap- 
pear ; but otherwise the resolutions of the convention 
are conformed to by the constitution drafted on the 
Pinckney draft. Conforming to the resolutions 
of the convention, the rough draft was interpretable 
to the federal plan as observed : so it was in following 
the Confederation in details ; and in the further pro- 
visions of detail from precedent constitutions nothing 
appears to obstruct such interpretation. Therefore 
the rough draft of the Constitution conformed to the 
national plan, with the exceptions noted, yet was in- 
terpretable to the federal plan. 



REVISED DRAFT OF THE CONSTITUTION. 

REPORTED SEPTEMBER 12, 1787, BY THE COMMITTEE OP REVISION. 

[Paper furnished by General Bloomfleld. The original is Mr. Brearly's copy 
of the draft, with manuscript interlineations and erasures of the amendments 
adopted on the examination and discussion J 

We, the people of the United States, in order to form a 
more perfect nnion, to establish justice, insure domestick 
tranquillity^ provide for the common defence, promote the 
general welfare, and secure the blessings of liberty to our- 
selves and our posterity, do ordain and establish this Consti- 
tution for the United States of America. 

Art. I. — Sect. 1. All legislative powers herein granted 
shall be vested in a Congress of the United States, which shall 
consist of a Senate and House of Representatives . 

Sect. 2. The House of Eepresentatives shall be composed 
of members chosen every second year by the people of the sev- 
eral states, and the electors in each state shall have the qualifi- 
cations requisite for electors of the most numerous branch of 
the state legislature. 

No person shall be a representative who shall not have at- 
tained to the age of twenty-five years, and been seven years a 
citizen of the United States, and who shall not, when elected, 
be an inhabitant of that state in which he shall be chosen. 

Eepresentatives and direct taxes shall be apportioned 
among the several states, which may be included within this 
Union, according to their respective numbers, which shall 
be determined by adding to the whole number of free persons, 
including those bound to servitude for a term of years, and 
excluding Indians not taxed, three-fifths of all other persons. 
The actual enumeration shall be made within three years 
after the first meeting of the Congress of the United States, 
and within every subsequent term of ten years, in such man- 
ner as they shall by law direct. The number of representa- 
tives shall not exceed one for every forty thousand, but each 
state shall have at least one representative, and until such 
enumeration shall be made, the state of New Hampshire shall 
be entitled to choose three, Massachusetts eight, Ehode Island 
and Providence Plantations one, Connecticut five. New York 
six. New Jersey four, Pennsylvania eight, Delaware one, 
Maryland six, Virginia ten, 'North Carolina five. South 
Carolina five, and Georgia three. When vacancies happen in 
the representation from any state, the executive authority 
thereof shall issue writs of election to fill such vacancies. 

The House of Eepresentatives shall choose their speaker 
and other officers; and they shall have the sole power of im- 
peachment. 



( 160 ) 

Sect. 3. The Senate of the United States shall be com- 
posed of two senators from each state, chosen by the legisla- 
ture thereof for six years; and each senator shall have one 
vote. 

Immediately after they shall be assembled in conse- 
quence of the first election, they shall be divided, as equally 
as may be, into three classes. The seats of the senators of the 
first class shall be vacated at the expiration of the second 
year ; of the second class at the expiration of the fourth year ; 
and of the third class at the expiration of the sixth year; so 
that one-third may be chosen every second year. And if va- 
cancies happen by resignation, or otherwise, during the recess 
of the legislature of any state, the executive thereof may make 
temporary appointments until the next meeting of the legis- 
lature. 

Ko person shall be a senator who shall not have attained 
to the age of thirty years, and been nine years a citizen of the 
United States, and who shall not, when elected, be an inhab- 
itant of that state for which he shall be chosen. 

The Vice-President of the United States shall be, ex officio, 
president of the Senate, but shall have no vote, unless they be 
equally divided. 

The Senate shall choose their other officers, and also a 
president pro tempore, in the absence of the Vice President, 
or when he shall exercise the office of President of the United 
States. 

The Senate shall have the sole power to try all impeach- 
ments. When sitting for that purpose, they shall be on oath. 
When the President of the United States is tried, the Chief 
Justice shall preside; and no person shall be convicted with- 
out the concurrence of two-thirds of the members present. 
Judgment in cases of impeachment, shall not extend further 
than to removal from office, and disqualification to hold and 
enjoy any office of honor, trust, or profit under the United 
States; but the party convicted shall nevertheless be liable 
and subject to indictment, trial, judgment, and punishment, 
according to law. 

Sect. 4. The times, places, and manner, of holding elec- 
tions for Senators and Representatives, shall be prescribed 
in each state by the legislature thereof ; but the Congress may 
at any time by law make or alter such regulations. 

The Congress shall assemble at least once in every year; 
and such meeting shall be on the first Monday in December, 
unless they shall by law appoint a different day. 

Sect. 5. Each house shall be the judge of the elections, 
returns, and qualifications, of its own members ; and a major- 



( 161 ) 

ity of each, shall constitute a quorum to do business; but a 
smaller number may adjourn from day to day, and may be 
authorized to compel the attendance of absent members, in 
such manner, and under such penalties as each house may 
provide. 

Each house may determine the rules of its proceedings; 
punish its members for disorderly behaviour, and, with the 
concurrence of two-thirds, expel a member. 

Each house shall keep a journal of its proceedings, and 
from time to time publish the same, excepting such parts as 
may, in their judgment, require secrecy; and the yeas and 
nays of the members of either house on any question shall, 
at the desire of one-fifth of those present, be entered on the 
Journal. Neither house, during the session of Congress, shall, 
without consent of the other, adjourn for more than three 
days, nor to any other place than that in which the two houses 
shall be sitting. 

Sect. 6. The senators and representatives shall receive a 
compensation for their services, to be ascertained by law, and 
paid out of the treasury of the United States. They shall in 
all cases, except treason, felony, and breach of the peace, be 
privileged from arrest during their attendance at the ses- 
sion of their respective houses, and in going to, and returning 
from the same; and for any speech or debate in either house, 
they shall not be questioned in any other place. 

No senator or representative shall, during the time for 
which he was elected, be appointed to any civil office, under 
the authority of the United States, which shall have been cre- 
ated, or the emoluments whereof shall have been increased, 
during such time ; and no person holding any office under the 
United States shall be a member of either house during his 
continuance in office. 

Sect. 7. The enacting style of the laws shall be, " Be it 
enacted by the senators and representatives in Congress as- 
sembled." 

All bills for raising revenue shall originate in the House 
of Eepresentatives ; but the Senate may propose or concur 
with amendments, as on other bills. 

Every bill which shall have passed the House of Eepre- 
sentatives and the Senate, shall, before it become a law, be 
presented to the President of the United States. If he ap- 
prove, he shall sign it ; but if not, he shall return it, with his 
objections, to that house in which it shall have originated, 
who shall enter the objections at large on their Journal, and 
proceed to reconsider it. If, after such reconsideration, two- 
thirds of that house shall agree to pass the bill, it shall be 



( 162 ) 

sent, together with the objections, to the other house, by which 
it shall likewise be reconsidered ; and if approved by two-thirds 
of that house, it shall become a law. But in all such cases, the 
"votes of both houses shall be determined by yeas and nays; 
and the names of the persons voting for and against the 
bill shall be entered on the Journal of each house re- 
spectively. If any bill shall not be returned by the President 
within ten days (Sundays excepted) after it shall have been 
presented to him, the same shall be a law, in like manner as 
if he had signed it, unless the Congress, by its adjournment, 
prevent its return ; in which case it shall not be a law. 

Eveiy order, resolution, or vote, to which the concurrence 
of the Senate and House of Eepresentatives may be necessary, 
(except on a question of adjournment,) shall be presented to 
the President of the United States, and, before the same shall 
take effect, shall be approved by him, or, being disapproved by 
him, shall be repassed by three-fourths of the Senate and 
House of Eepresentatives, according to the rules and limita- 
tions prescribed in the case of a bill. 

Sect. 8. The Congress may, by joint ballot, appoint a 
treasurer. They shall have power to lay and collect taxes, 
duties, imposts and excises; 

To pay the debts and provide for the common defence and 
general welfare of the United States; 

To borrow money on the credit of the United States ; 

To regulate commerce with foreign nations, among the 
several states, and with the Indian tribes; 

To establish a uniform rule of naturalization, and uniform 
laws on the subject of bankruptcies, throughout the United 
States. 

To coin money, regulate the value thereof, and of foreign 
coin, and fix the standard of weights and measures; 

To provide for the punishment of counterfeiting the secur- 
ities and current coin of the United States; 

To establish post offices and post roads; 

To promote the progress of science and useful arts, by se- 
curing for limited times, to authors and inventors, the exclu- 
sive right to their respective writings and discoveries; 

To constitute tribunals inferior to the Supreme Court; 

To define and punish piracies and felonies committed on 
the high seas, and offences against the law of nations; 

To declare war, grant letters of marque and reprisal, and 
make rules concerning captures on land and water; 

To raise and support armies, — but no appropriation of 
money to that use shall be for a longer term than two years; 

To provide and maintain a navy; 



( 163 ) 

oflV'jZtt ^"" ''^^'""Siovth the militia to execute the laws 

To oYovl' r^'''' ^^^^-rections, and repel invasions; 
mmurZiJ °^g^^i^ing arming, and disciplining he 
militia, and for goyemmg such part of them as may be em- 
ployed m the service of the United States-reserving to the 
states, respectively, the appointment of the officers and the 

^^AX^^' -^''-' --^-^ - ^^^ 

^^sX^rSl^e!^ 

by cession of particular states, and the acceptance of Con-' 

& '7^ *^' ''"* ?-^ ^^' government ^of the Un^Ld 
States and to exercise like authority over all places pur 
chafed by the consent of the legislatur'e of the stateTn wCh 
the ame shall be, for the erection of forts, magazines ar- 
senals, dock yards, and other needful buildings; and ^ 

io make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers and alfothpr 

Cte'd Sis '' ''''' 'r^^^^°^ '^'^^ go^^mtnf of the 
united States or m any department or officer thereof 

(SECT. 9. ihe migration or importation of such persons 
as the several states, now existing, shall think proper^o ad 
nnt, shall not be prohibited by the Congress prior tfthe year 
rimriT' "^'' ^r^'^^' ^^ ^^^^*' ^^^ a'tax or dut^ Sa" 
for ea^persr ^"^P°^^^^°-^ ^^ exceeding ten dollarl 

K Llr '^^'''' • ^ '^''' °^ ^^^^^^i°^ or i^^asion, the pub- 
iick safety may require it. . i^uu 

^^ No bill of attainder shall be passed, or any ex post facto 

ihfn '^P^i'*^°^ i^"^ ^i^^ll be laid, unless in proportion to 
the census hereinbefore directed to be taken 

state*? ^^'^ °' ^""^^ '^^^^ ^' ^^'^ ^'^ ^'^''^^' ^'^Por^^d fro^ any 

No money shall be drawn from the treasury, but in conse- 
quence of appropriations made by law 

^0 title of nobility shall be granted by the United States. 

tht)n\ZF'"li \°^?^^ '°y "^^^ °^ profit or trust under 
them, shall, without the consent of Congress accept of anv 
present, emolument, office, or title, of any lind'whatever from 
any king, prince, or foreign state. 

Sect. 10. No state shall coin money nor emit bills of 
credit, nor make anything but gold and silver coin a tender in 



( 164 ) 

payment of debts, nor pass any bill of attainder, nor ex post 
facto la\ys, nor laws altering or impairing the obligation of 
contracts ; nor grant letters of marque and reprisal ; nor enter 
into any treaty, alliance, or confederation ; nor grant any title 
of nobility. 

JS'o state shall, without the consent of Congress, lay imposts 
or duties on imports or exports, nor with such consent, but 
to the use of the treasury of the United States; nor keep 
troops nor ships of war in time of peace ; nor enter into any 
agreement or compact with another state, nor with any for- 
eign power ; nor engage in any war, unless it shall be actually 
invaded by enemies, or the danger of invasion be so immi- 
nent, as not to admit of delay until the Congress can be con- 
sulted. 

Art. II. — Sect. 1. The executive power shall be 
vested m a President of the United States of America. He 
shall hold his office during the term of four years, and, to- 
gether with the Vice President, chosen for the same term, 
be elected in the following manner: — 

Each state shall appoint, in such manner as the legislature 
thereof may direct, a number of electors equal to the whole 
number of senators and representatives to which the state 
may be entitled in Congress ; but no senator or representatives 
shall be appointed an elector, nor any person holding an 
office of trust or profit under the United States. 

The electors shall meet in their respectives states, and vote 
by ballot for two persons, of whom one at least shall not be 
an inhabitant of the same state with themselves, and they 
shall make a list of all the persons voted for, and of the num- 
ber of votes for each; which list they shall sign and certify, 
and transmit sealed to the seat of the general govern- 
ment, directed to the president of the Senate. The presi- 
dent of the Senate shall, in the presence of the Senate 
and House of Eepresentatives, open all the certificates; and 
the votes shall then be counted. The person having the great- 
est number of votes shall be the president, if such number be 
a majority of the whole number of electors appointed; and if 
there be more than one who have such majority, and have an 
equal number of votes, then the House of Eepresentatives 
shall immediately choose by ballot one of them for President; 
and if no person have a majority, then from the five highest 
on the list the said house shall, in like manner, choose the 
President. But in choosing the president, the votes shall be 
taken by states, and not per capita, the representation from 
each state having one vote. A quorum for this purpose shall 
consist of a member or members from two-thirds of the states ; 



( 165 ) 

and a majority of all the states shall be necessary to a choice. 
In every case, after the choice of the President by the repre- 
sentatives, the person having the greatest number of votes of 
the electors shall be the Vice President. But if there should re- 
main two or more who have equal votes, the Senate shall 
choose from them, by ballot, the Vice President. 

The Congress may determine the time of choosing the 
electors, and the time in which they shall give their votes; 
but the election shall be on the same day throughout the 
United States. 

No person except a natural-born citizen, or a citizen of the 
United States at the time of the adoption of this Constitution, 
shall be eligible to the office of President; neither shall any 
person be eligible to that office who shall not have attained to 
the age of thirty-five years, and been fourteen years a resident 
within the United States. 

In case of the removal of the President from office, or of his 
death, resignation, or inability to discharge the powers and 
duties of the said office, the same shall devolve on the Vice 
President ; and the Congress may by law provide for the case 
of removal, death, resignation, or inability, both of the Presi- 
dent and Vice-President, declaring what officer shall then 
act as President; and such officer shall act accordingly, until 
the disability be removed, or the period for choosing another 
President arrive. 

The President shall, at stated times, receive a fixed compen- 
sation for his services, which shall neither be increased nor 
diminished during the period for which he shall have been 
elected. 

Before he enter on the execution of his office, he shall take 
the following oath or affirmation: — 

"I do solemnly swear (or affirm) that I will faithfully exe- 
cute the office of President of the United States, and will, to 
the best of my judgment and power, preserve, protect, and 
defend the Constitution of the United States. 

Sect. 2. The President shall be commander-in-chief of 
the army and navy of the United States, and of the militia of 
the several states, when called into the actual service of the 
United States. 

He may require the opinion, in writing, of the principal of- 
ficer in each of the executive departments, upon any subject 
relating to the duties of their respective offices. And he shall 
have power to grant reprieves and pardons for offences against 
the United States, except in cases of impeachment. 

He shall have power, by and with the advice and consent of 
the Senate, to make treaties, provided two-thirds of the sen- 



( 166 ) 

ators present concur; and he shall nominate, and by and with 
the advice and consent of the Senate, shall appoint ambassa- 
dors, other public ministers, and consuls, judges of the Su- 
preme Court, and all other officers of the United States, whose 
appointments are not herein otherwise provided for. 

The President shall have power to fill up all vacancies that 
may happen during the recess of the Senate, by granting 
commissions, which shall expire at the end of the next session. 

Sect. 3. He shall, from time to time, give to the Congress 
information of the state of the Union, and recommend to 
their consideration such measures as he shall judge necessary 
and expedient. He may, on extraordinary occasions, convene 
both houses, or either of them, and in cases of disagreement 
between them with respect to the time of adjournment, he 
may adjourn them to such time as he shall think proper. He 
shall receive ambassadors and other public ministers. He 
shall take care that the laws be faithfully executed ; and shall 
commission all the officers of the United States. 

Sect. 4. The President, Vice President, and all civil offi- 
cers of the United States, shall be removed from office on im- 
peachment for, and conviction of, treason, briberv. or other 
high crimes and misdemeanors. 

Aet. III. — Sect. 1. The judicial power of the United 
States, both in law and equity, shall be vested in one Supreme 
Court, and in such inferior courts as the Congress may, from 
time to time, ordain and establish. The judges, both of the 
Supreme and inferior courts shall hold their offices during 
good behavior, and shall, at stated times, receive for their ser- 
vices a compensation, which shall not be diminished during 
their continuance in office. 

Sect. 2. The judicial power shall extend to all cases, both 
in law and equity, arising under this Constitution, the laws 
of the United States, and treaties made, or which shall be 
made, under their authority; to all cases affecting ambassa- 
dors, or other public ministers, and consuls; to all cases of 
admiralty and maritime jurisdiction; to controversies to 
which the United States shall be a party ; to controversies be- 
tween two or more states ; between a state and citizens of an- 
other state; between citizens of different states; between citi- 
zens of the same state claiming lands under grants of difLcrent 
states; or between a state, or the citizens thereof, and foreign 
states, citizens, or subjects. 

In cases affecting ambassadors, other public ministers, and 
consuls, and those in which a state shall be a party, the Su- 
preme Court shall have original jurisdiction. In all other 
cases before mentioned, the Supreme Court shall have appel- 



( 167 ) 

late jurisdiction, both as to law and fact, — with such excep- 
tions, and under such regulations, as the Congress shall make. 

The trial of all crimes, except in cases of impeachment, 
shall be by jury ; and such trial shall be held in the state where 
the said crime shall have been committed ; but when not com- 
mitted within any state, the trial shall be at such place or 
places as the Congress may by law have directed. 

Sect. 3. Treason against the United States shall consist 
only in levying Avar against them, or in adhering to their en- 
emies, giving them aid and comfort. No person shall be con- 
victed of treason, unless on the testimony of two witnesses to 
the same overt act, or on confession in open court. 

The Congress shall have power to declare the punishment 
of treason; but no attainder of treason shall work corruption 
of blood, nor forfeiture, except during the life of the person 
attainted. 

Aet. IV.— Sect. 1. Full faith and credit shall be 
given, in each state, to the public acts, records, and judicial 
proceedings, of every other state; and the Congress may, by 
general laws, prescribe the manner in which such acts, rec- 
ords, and proceedings, shall be proved, and the effect thereof. 

Sect. 2. The citizens of each state shall be entitled to all 
privileges and immunities of citizens in the several states. 

A person charged in any state with treason, felony, or other 
crimes, who shall flee from justice, and be found in another 
state, shall, on demand of the executive authority of the state 
from which he fled, be delivered up, and removed to the state 
having jurisdiction of the crime. 

No person legally held to service or labor in one state, es- 
caping into another, shall, in consequence of regulations 
subsisting therein, be discharged from such service or labor, 
but shall be delivered up, on claim of the party to whom such 
service or labor may be due. 

Sect. 3. New states may be admitted by the Congress into 
this Union: but no new state shall be formed or erected 
within the jurisdiction of any other state, nor any state be 
formed by the junction of two or more states, or parts of 
states, without the consent of the legislatures of the states 
concerned, as well as of the Congress. 

The Congress shall have power to dispose of and make all 
needful rules and regulations respecting the territory or other 
property belonging to the United States ; and notliing in this 
Constitution shall be so construed as to prejudice any claim 
of the United States, or of any particular state. 

Sect. 4. The United States shall guaranty to every state 
in this Union a republican form of government, and shall 



( 168 ) 

protect each of them against invasion, and, on application of 
the legislature or executive, against domestic violence. 

Art. V. The Congress, whenever two-thirds of both 
houses shall deem necessary, or on the application of two- 
thirds of the legislatures of the several states, shall propose 
amendments to this Constitution, which shall be valid, to all 
intents and purposes, as part thereof, when the same shall 
have been ratified by three-fourths, at least, of the legislatures 
of the several states, or by conventions in three-fourths 
thereof, as the one or the other mode of ratification may be 
proposed by the Congress; provided, that no amendment 
which may be made prior to the year 1808 shall in any man- 
ner atfect the and sections of article 

Art. VI. All debts contracted, and engagements en- 
tered into, before the adoption of this Constitution, shall be 
as valid against the United States under this Constitution as 
under the Confederation. 

This Constitution, and the laws of the United States which 
shall be made m pursuance thereof, and all treaties made, or 
which shall be made, under the authority of the United States, 
shall be the supreme law of the land ; and the judges in every 
state shall be bound thereby, anything in the Constitution )f 
laws of any state to the contrary notwithstanding. 

The senators and representatives before mentioned, and the 
members of the several state legislatures, and all executive 
and judicial officers, both of the United States and of the sev- 
eral states shall be bound, by oath or affirmation, to support 
this Constitution ; but no religious test shall ever be required 
as a qualification to any office of public trust under the United 
States. 

Art. VII. The ratification of the conventions of nine 
states shall be sufficient for the establishment of this Consti- 
tution between the states so ratifying the same. 



FROM THE ROUGH DRAFT TO THE 
REVISED DRAFT. 

The revised and arranged draft having been set 
out it vi^ill be observed how the rough draft changed 
in its course to the revised draft, reported from com- 
mittee to whom the proceedings were referred to re- 
vise the style of and arrange -the articles agreed to 
by the house, on September 12. The rough draft 
will be observed in the revised draft, article by ar- 
ticle, section by section, the rough draft being men- 
tioned first. 

The preamble was put in not by the convention 
but by the committee of revision of style and ar- 
rangement. According to it, the Constitution is 
made by the people of the United States, to be rati- 
fied by the people of the several states, it would ap- 
pear. Its first purpose, to form more perfect union, 
appears to be the general purpose of the convention 
to consolidate the Union. The Letter of the Conven- 
tion to Congress, or address to the people, as it was 
called in the resolution of the convention instruct- 
ing the committee on revision to prepare and report 
it, says: ''In all our deliberations on the subject we 
kept steadily in our view that which appeared to us 
the greatest interest of every true American — the 
consolidation of the Union." The conception of 
" most perfect union ■' had long obtained: November 
4, '75, Congress resolved, "The Congress considering 
that the most perfect union between all the colonies 
is essentially necessary for the preservation of the 
just rights of North America, &c." Whether more 
perfect union would become most perfect union 
would be matter of interpretation. The second pur- 
pose of the preamble, to establish justice, is that of 
the judiciary, the third, to insure domestic tranquil- 
ity is that of the executive; the judiciary and the 



( 170 ) 

executive being the means of administering and exe- 
cuting the power of Congress by the Confederation, 
the lack of which was the leading defect of the Con- 
federation and the establishment whereof was the 
gTeat w^ork of the constitutional convention. The 
last three purposes, to provide for the common de- 
fense, promote the general welfare, and secure the 
blessings of liberty, are the purposes of the Confed- 
eration and Union, by article three whereof the 
states were confederated and united for their com- 
mon defense, the security of their liberties and their 
mutual and general welfare. The fourth and fifth 
purposes, to provide for the common defense and 
promote the general welfare, are the purposes of 
Congress by the Confederation for which they were 
empowered to defray all charges of war and all other 
expenses and therefor to require the several states 
to supply the common treasury, as will be observed. 
Prior thereto Parliament sought to raise revenue 
from the several colonies — without their representa- 
tion — for the purpose of the common defense and 
general welfare of the United Kingdom, as the pa- 
pers and addresses of the Continental Congress 
show. The last purpose, the security of liberty is 
the express purpose, not only of the Confederation, 
but of the British constitution, according to Mon- 
tesquieu, who in his analysis of the British constitu- 
tion says ■} 

"Though all governments have the same general 
end, which is that of preservation, yet each has an- 
other particular object. Increase of dominion was 
the object of Rome; war, that of Sparta; religion, 
that of the Jewish laws; commerce, that of Mar- 
seilles; public tranquility, that of the laws of China; 
navigation, that of the laws of Rhodes; natural lib- 
erty, that of the policy of the Savages; in general, 
the pleasures of the prince, that of despotic states; 

1 Montesquieu's Spirit of Laws, book 11; 5. 



( 171 ) 

that of monarchies, the princes and the kingdom's 
glory; the independency of the individual is the end 
aimed at by the laws of Poland, thence results the 
oppression of the whole. One nation there is also in 
the world that has for the direct end of its constitu- 
tion political liberty. We shall presently examine 
the principles on which this liberty is founded; if 
they are sound, liberty will appear in its highest per- 
fection." Then he proceeds to examine the British 
constitution. 

Thus it will be observed the preamble expresses 
three new purposes supplementing the three old pur- 
poses of the Confederation from the constitution of 
Great Britain. Finally it will be noted that it is not 
only for "^ourselves" but for '^our posterity" that the 
constitution is ordained and established; and that 
it is for the United States co-equal with America. 

Article 1 of the rough draft, that the style of the 
government be ' the United States of America,' having 
been included in the preamble, is omitted from the 
revised draft. Article 2 of the rough draft, that the 
government consist of supreme legislative, execu- 
tive and judiciary, is also omitted from the revised 
draft, being otherwise shown therein. Article 3, 
that the legislative power shall be in Congress of 
two bodies, etc., is article 1, section 1 and paragraph 
2 of section 4, article 1, of the revised draft, but the 
senate is named before the house of representatives 
according to the precedent constitutions. It may be 
observed also that the order of arrangement of the 
three departments of government, the legislative 
first, then the executive, and then the judiciary, is 
the same in the revised draft as in the rough draft, 
in accordance with the usual order of arrangement 
in the constitutions of the several states. 

Article 4, section 1, that the house of representa- 
tives be chosen every second year by the people of 
the several states, the qualifications of electors to be 



( 172 ) 

those of electors of the several states for the popular 
branch of the legislature is article 1, section 2, par- 
agraph 1 of the revised draft. Article 4, section 2, 
of qualifications of representatives is article 1, sec- 
tion 2, paragraph 2, but citizenship of three years 
is changed to seven years. Article 4, sections 3 and 4 
are article 1, section 2, paragraph 3, but representa- 
tives and direct taxes are coupled together accord- 
ing to the resolution of the convention in convention, 
both being apportioned according to population as- 
certained by census as aforesaid. Article 4, section 
5, paragraph 1, of bills for revenue originating in the 
house of representatives is article 1, section 7, para- 
graph 2; but so altered that the senate may propose 
or concur with amendments as on other bills; which 
alteration departing from British precedent, was a 
concession to the house composed according to the 
federal plan. Paragraph 2 of appropriations is ar- 
ticle 1, section 9, paragraph 6. Article 4, section 6, 
of the power of representatives to impeach and to 
choose their speaker and other officers is article 1, 
section 2, paragraph 5. Article 4, section 7 of vacan- 
cies in representation is article 1, section 2, para- 
graph 4. 

Article 5, sections 1 and 2, of the senators, chosen 
by the state legislatures, two from each state, each 
with one vote and of their term of office and classi- 
fication and of vacancies, is article 1, section 3, para- 
graphs 1 and 2. Article 5, section 3, of the qualifica- 
tions of senators, is article 1, section 3, paragraph 
3, but citizenship of four years is changed to nine 
years. Article 5, section 4 of the power of the senate 
to choose its president and other officei's, is article 1, 
section 3, paragraphs 4 and 5, but so altered that the 
president of the senate shall be the vice-president of 
the United States, which office is established, as will 
be observed. And to the senate is given the power 
to try impeachments, according to the British con- 



( 173 ) 

stitiition; this power having been left with the su- 
preme court in the rough draft, from the Pinckney 
draft.^ 

Article 6, section 1, prescribing for election of 
members of each house, is article 1, section 4, para- 
graph 1. Article 6, section 2 of property qualifica- 
tions of members is omitted, thus indicating that the 
omission of property qualifications of the executive 
and judiciary from the rough draft was sanctioned 
by the convention notwithstanding the instructions 
of the last resolution of the convention to 
insert the same.^ Article 6, sections 3 and 
4 of a quorum in each house and its right 
to judge of qualifications of its members is article 

1, section 5, paragraph 1, adding the right of less 
than a quorum to compel attendance of members. 
Article 6, section 5 of the privileges of members of 
freedom of speech and from arrest, is in article 1, 
section 6, paragraph 1. Article 6, section 6 of each 
house making its rules, is article 1, section 5, para- 
graph 2, adding the rule that two-thirds of each 
house shall be the number required to expel a mem- 
ber. Article 6, section 7 of the journal of each house, 
is article 1, section 5, paragraph 3, but parts of the 
journal requiring secrecy may be excepted from pub- 
lication, which was according to Confederation ar- 
ticle 9, the last paragraph. Article 6, section 8, of 
adjournments of one house without the other's con- 
sent is article 1, section 5, paragraph 4. 

Article 6, section 9, of the ineligibility of members 
of each house to other office under the United States 
during their term, is article 1, section 6, paragraph 

2, but the ineligibility is restrained to offices created, 
or the emoluments whereof shall have been increased 
during the term in question, and the further ineligi- 

1 Blaok. Com., book 4, chap. 19, p. 260. 

^ But these instructions in the resolutions of the convention were merely 
to receive such clauses, there being no determination of the convention to utiliie 
property qualifications. July 26. 



( 174 ) 

bility as to the senate is omitted; and it is added 
from article 5 of the Confederation that no office 
holder under the United States shall be a member of 
either house. Article 6, section 10 of the compensa- 
tion of members, is in article 1, section 6, paragraph 1 
but so altered that compensation shall be made by 
the United States instead of by the several states. 
The committee of the whole house had resolved for 
compensation of members by the United States, but 
according to the Confederation article 5, each state 
maintained its own members; the resolutions of the 
convention in convention left the matter open and 
the rough draft followed the Confederation as ob- 
served: Now, however, compensation was restored 
to the United States, the idea being, as shown in the 
debates, that members would be more likely to giv^e 
adherence to the government, either the United 
States or their respective state, from which they drew 
their compensation. Article 6, section 11 of the en- 
acting style of laws, is article 1, section 7, but the 
senate now precedes the house of representatives, ac- 
cording to the precedents as observed; and the clause 
"of the United States" is omitted from "the represen- 
tatives and senate of the United States" thus leaving 
it open to interpretation to determine whether al- 
legiance of members is due to the United States or to 
the several states, that is, whether senators and 
representatives are senators and representatives of 
the United States from the several states, or are 
senators and representatives of the several states to 
or for the United States. Article 6, section 12, that 
each house may originate bills, is omitted as super- 
fluous. 

Article 6, section 13 of the executive negative is 
article 1, section 7, paragraph 3, enlarging the time 
within which bills not returned by the president be- 
come law from seven to ten days; and adding a new 
provision as follows: That every order, resolution 



( 175 ) 

-or vote to which the concurrence of the senate and 
house of representatives is necessary, be presented to 
the president to be approved by him before talking 
effect, or being disapproved to be passed again by 
three-fourths of the senate and house of representa- 
tives as in the cases of bills. This enlarged the exe- 
cutive negative by requiring matters passed over it 
to have three-fourths instead of two-thirds of each 
house in any case of an ''order, resolution or vote," 
leaving the difference between a bill, which would 
require but two-thirds, and an order, resolution or 
vote which would require three-fourths of each 
house to pass it over the executive veto, an open 
question. But this enlargement of executive power 
was struck out later by the reduction of the three- 
fourths to two-thirds in the case of an order, reso- 
lution or vote, as in the case of a bill, as will be ob- 
served. 

Thus far, that is down to the powers of Congress, 
the changes from the rough draft to the revised draft 
are as follows: The superfluous articles on the style 
of the government and of its consisting of legislative, 
executive and judiciary, and that both houses may 
originate bills, save for revenue, are omitted. Of the 
two houses of Congress the senate is now named be- 
fore the house of representatives, and this is so in 
the clause upon the style of the laws. Qualifications 
of citizenship of representatives and senators are 
changed from three years to seven years, and from 
four years to nine years, respectively. Kepresenta- 
tives and direct taxes are recoupled as in the resolu- 
tions of the convention in convention. The senate 
may now propose or concur with amendments of 
revenue bills. The president of the senate is to be 
the vice-president of the United States. Power to 
try impeachments is withdrawn from the judiciary 
and given to the senate. Provision for property 
qualifications of members of each house is omitted. 



( 17^ ) 

There is addition to the parliamentary rules that less 
than a quorum may compel attendance; two-thirds 
of each house may expel members; and parts of the 
journal requiring secrecy may be excepted from pub- 
lication. The capacity of members of each house to 
hold other office is changed; and compensation of 
members by the United States, rather than by the 
several states, is restored. The time for the president 
to consider bills is enlarged from seven to ten days. 
The clause requiring three-fourths of each house to 
pass an order, resolution or vote over the executive 
veto is inserted. These comprise all the changes from 
the rough draft down to the powers of Congress. 

Article 7, section 1, of the rough draft that the 
legislature of the United States shall have power to 
lay and collect taxes, duties, imposts and excises be- 
comes in article 1, section 8, of the revised draft: 
The Congress may by joint ballot appoint a treasur- 
er. They shall have power to lay and collect taxes, 
duties, imposts and excises: To pay the debts and 
provide for the common defense and general welfare 
of the United States. Here "Congress" replaces 
'' legislature of the United States," and power to ap 
point a treasurer by ballot which was in the rough 
draft is to be exercised by joint ballot. Power to 
lay and collect taxes, duties, imposts and excises re- 
mains as in the rough draft but the clause is added, 
To pay the debts and provide for the common de- 
fense and general welfare of the United States. In 
the first edition of the Journal published in 1819 by 
authority of Congress by direction of the president, 
as has been heretofore observed the clause aforesaid 
To pay the debts and provide for the common de- 
fense and general welfare of the United States is 
printed in the revised draft as a separate and inde- 
pendent clause beginning with a capital "T" like 
all the other powers, the punctuation after the word 
"excises," immediately preceding, being a colon. 



( 177 ) 

In tlie latest edition of Elliot's Debates there is after 
the word "• excises " aforesaid no colon^ but merely a 
comma, after which comes the clause — ^to pay the 
debts and provide for the common defense and gen- 
eral welfare of the United States, not as a separate 
and independent clause but as x)art of what precedes. 
Thus the first edition reads: The Congress may by 
joint ballot appoint a treasurer. They shall have 
power to lay and collect taxes, duties, imposts and 
excises: 

To pay the debts and provide for the common de- 
fense and general welfare of the United States: 
While in the latest edition the clause reads: The 
Congress may by joint ballot appoint a treasurer. 
They shall have power to lay and collect taxes, 
duties, imposts and excises, to pay the debts and pro- 
vide for the common defense and general welfare of 
the United States. 

The purpose of the Confederation and Union was 
to provide for the common defense and general wel- 
fare, as observed. To this end at the making of the 
Articles of Confederation the chief requirement was 
to defray all charges of the war of the Revolution 
then going on and all other expenses. For this the 
treasury must be supplied and the supply must come 
from the members of the Union, the several states, 
and Article 8 of the Confederation was agreed on. 
By it the United States in Congress had the right 
and the several states had the obligation to supply 
the common treasury to defray all charges of war 
and all other expenses for the common defense or 
general welfare. If the treasury were supplied all 
charges of war and all other expenses would be de- 
frayed and provision made for the common defense 
or general welfare by the concurrent action of Con- 
gress and the several states. But Congress could not 
lay or collect taxes but were dependent on the several 
states fulfilling their obligations by complying with 
the requisitions on them for their quotas of revenue, 



( 178 ) 

by laying and collecting taxes for their quotas and 
contributing them to the treasury of the United 
States; and the several states interpreted them- 
selves as ultimately supreme and their contributions 
as voluntary, whereby Congress had no right to have 
the treasury supplied or the charges of war or other 
expenses defrayed or the common defense or general 
welfare provided for without their consent; and the 
several states failing to comply with the requisitions 
of Congress — and in some instances refusing to com- 
ply- — the United States accumulated by the end of 
the war a very heavy debt, the non-payment whereof 
and t]ie fear of its repudiation, as the several states 
were repudiating theirs by depreciated currency, or 
otherwise, injured the credit of the United States, 
weakened the common defense and was contrary to 
the general welfare. General Washington in his 
Legacy in 1783 urged the payment of the debts of 
the United States as a foremost requirement for the 
general welfare. When the constitutional conven- 
tion assembled in 1787 the debt was some |50,000,000 
and the chief requirement for the common defense 
and general welfare was no longer to defray all 
charges of war and all other expenses, as in the Con- 
federation, but to pay the debts of the United States. 
The convention being assembled to make the con- 
stitution " adequate to the exigencies of govern- 
ment and the preservation of the Union" conferred 
on the national legislature power to fulfill the pur- 
poses of Congress by the Confederation to provide 
for the common defense and general welfare. This 
is clear in the resolutions of the convention prior to 
the reference to the committee of detail to draft the 
Constitution, that the national legislature shall have 
the legislative power vested in Congress by the Con- 
federation, and moreover for the general interests 
of the Union, and where the separate states are in- 
competent or individual legislation might interrupt 



( 179 ) 

the harmony of the Union, which resolution carried 
power as has been observed, according to the pur- 
poses of Congress by the Confederation as well as 
according to the precedent constitutions, the legis- 
lative power of perfect union. This power further 
accords with the purposes of the preamble to pro- 
vide for the common defense and promote the gener- 
al w^elfare. To this end the chief requirement being 
to pay the debts, the convention validated the debts 
of the United States by Article 6 of the Constitution, 
as will be observed, and having resolved that future 
states might be compelled to share the debts, as ob- 
served in the provision for the admission of new 
states, the convention further resolved that Con- 
gress should have power to pay the debts.^ But to 
this end the treasury of the United States must be 
supplied, and the supply could only come from the 
members of the Union, the several states, and only 
by conferring on Congress power to lay and collect 
taxes, thus relieving the United States of depen- 
dence on the contributions of the several states; and 
taxes being of two kinds, direct taxes to the several 
states and indirect taxes to the several states, the 
former denominated direct taxes, and the latter 
called duties, imposts and excises, the rough draft 
draw^n from the Pinckney draft provided that Con- 
gress shall have power to lay and collect taxes, 
duties, imposts and excises, and further provided 
the rule for direct taxes. Thereafter it was only 
necessary, in order to conform to the resolutions of 
the convention prior to the reference to committee 
of detail, to add power to pa^^ the debts and provide 
for the common defense and general welfare of the 

1 August 18th, a grand committee was appointed on the question of assuming 
debts of the several states. It reported August 21st, that the Legislature of the 
United States should have power to fulfill the engagements of Congress and 
discharge as well the debts of the United States as the debts incurred by the 
several states during the late war for the common defense and general welfare. 
August 22d, this report was amended, omitting the power to discharge the debts 
oi the several states, and adopted in the language, "The legislature shall fulfill 
the engagements and discharge the debts of the United States." 



( 180 ) 

United States : Hence tlie great general power of Con- 
gress: Tlie Congress may by joint ballot appoint a 
treasurer. They shall have power to lay and collect 
taxes, duties, imposts and excises. To pay the debts 
and provide for the common defense and general 
welfare of the United States. 

The steps leading to the adoption of this clause 
are as follows: August 18 and 20 the rough draft 
being under consideration two lists of additional 
powers to be conferred on Congress were submitted 
to the convention and referred to the committee of 
detail which had reported the rough draft. This 
committee made report August 22 that certain ad- 
ditions and alterations be made to their previous re- 
port, that is to the rough draft, the first being: At 
the end of the first clause of the seventh article, ada 
''for payment of the debts and necessary expenses of 
the United States," provided no law for revenue be 
in force more than years : another being at the 

end of the sixteenth clause, seventh article, add " and 
to provide as may become necessary from time to time 
for the w^ell-managing and securing the common 
property and general interests of the United States 
in such manner as shall not interfere with the gov- 
ernments of individual states in matters which re- 
spect only their internal police, or for which their in- 
dividual authorities may be competent." By the 
former addition, observe, the payment of the debts and 
necessary expenses of the United States would be only 
the purpose of the power to lay and collect taxes, 
duties, imposts, and excises. By the latter Congress 
would have power according to the resolution of the 
convention, from the Confederation, for the general 
interests of the United States, and power to secure 
the common property thereof, which w^as, it may be 
Submitted, the old Northwest Territory, then the 
chief asset of the United States.^ Yet this would 
reserve to the several states the government of their 

1 Bancroft's History of the United States. 



( 181 ) 

internal police. Congress would have power for the 
common defense and general welfare but to the sev- 
eral states would be reserved the power they assert- 
ed as colonies against Great Britain on the ground 
that they had no representation in the government. 
This report from the committee of detail was post- 
poned till August 25th. Then it was moved to add to 
the power of taxation of Congress the clause " for the 
payment of the debts and for defraying the expenses 
that shall be incurred for the common defense and 
general welfare; " but this motion passed in the nega- • 
five ten states to one, thus deciding that the power to 
lay and collect taxes, duties, imposts and excises 
should not be for the purpose of paying the debts and 
defraying the expenses incurred for the common de- 
fense and general welfare. Further than this the re- 
port of committee of August 22d appears never 
to have been voted on. August 31 it was referred 
to committee to which all the provisions of the 
Constitution remaining undisposed of were re 
ferred, and September 4th the committee reported 
that the first clause of the seventh article should be 
amended to read as follows : The Congress may by 
joint ballot appoint a treasurer. They shall have 
power to lay and collect taxes, duties, imposts and 
excises, to pay the debts and provide for the common 
defense and general welfare of the United States. 
This report was at once adopted. Thus it would ap- 
pear power to provide for the common defense and 
general welfare was adopted without the reservation 
to the several states of the government of their in- 
terna] police. 

Yet the whole might be interpreted to the Jersey 
plan, for power to lay and collect taxes, duties, im- 
posts and excises might be construed to be power to 
direct and appoint quotas as in the Confederation, 
and direct their collection in non-complying states 
and pass acts directing the same, the quotas remain- 



( 182 ) 

ing, however, the voluntary contributions of the sev- 
eral states; and duties, imposts and excises might be 
restrained to those which were incidental to the reg- 
ulation of commerce among the several states and 
with foreign nations in good faith, as the colonies 
had asserted against Great Britain in the Declara- 
tion of Rights of October 14, 1774, and other papers 
and addresses of the Continental Congress; and as 
Cieat Britain assented to by 18 George III, ch. xii 
(1778) relinquishing taxation save for regulation of 
commerce. In that event Congress, as in the Confed- 
eration, would have no means to pay the debts or pro- 
vide for the common defense or general welfare. 
Moreover the latter clause — to pay the debts and pro- 
vide for the common defense and general welfare 
might be construed to be only the purpose of the power 
to lay and collect taxes. 

The next clause of the rough draft, To regulate 
commerce with foreign nations and among the sev- 
eral states, appears in the revised draft, To regu- 
late commerce with foreign nations among the sev- 
eral states and with the Indian tribes. Power to 
regulate commerce with the Indian tribes was in 
Congress by the Confederation, Article 9, where Con- 
gress had power of "regulating the trade and man- 
aging all affairs with the Indians not members of 
any of the states, provided the legislative right of 
any state within its own limits be not infringed or 
violated." This power had been frequently exercised : 
June 4, '78 Congress authorized a treaty with the In- 
dians, and many treaties had been made with the 
Indians from time to time by authority of Congress. 
It may be observed here that powers which were sep- 
arate are included in one clause. This occurred be- 
fore in the rough draft where powers theretofore 
separate (1) to declare the law and punishment of 
piracies and felonies committed on the seas, and (2) 
the punishment of counterfeiting the coin of the 



( 183 ) 

United States, and (3) offenses against the law of na- 
tions were all included in one clause. In the Pinck- 
ney draft powers theretofore separate (1) to coin 
money, and (2) to regulate the value of all coins, and 
(3) to fix the standard of weights and measures were 
also included in one clause. It accords with this 
that the first clause should contain three or four 
powers,— to lay and collect taxes, etc., to pay the debts, 
to provide for the common defense and general wel- 
fare. It will also be observed that in the revised draft 
the order and arrangement of the powers is altered. 

The next clause of the rough draft, To establish 
a uniform rule of naturalization throughout the 
United States, becomes in the revised draft. To 
establish a uniform rule of naturalization and uni- 
form laws on the subject of bankruptcies through- 
out the United States. Here also two powers are 
included in one clause. The latter power to establish 
uniform laws on the subject of bankruptcy does not 
appear in the Confederation nor does it appear to 
have been exercised by Congress. It seems to have 
originated in the particular necessities of the period, 
in connection with the troubles occasioning the pro- 
hibition against the several states coining money or 
making any but specie a tender in payment of debts. 
Mr. Madison in his introduction to his private journal 
of the debates in the convention says^ " Among the 
defects (of the Confederation) which had been se- 
verely felt was want of uniformity in cases requiring 
it, as laws of naturalization and bankruptcy." The 
naturalization power was offered by the Jersey plan, 
as observed, but the bankruptcy power is perhaps 
the only particular power of Congress not expressly 
vested in or exercised by Congress by the Confedera- 
tion or offered by the Jersey plan.^ 

1 Elliot's Debates, vol. 5. 

2 This novelty of the bankruptcy provision makes its introduction of spe- 
cial interest, but no reason appears beyond that stated by Mr. Madison. The 
Journal shows that on August 29th the sixteenth article of the rough draft was 
taken up, reading "Full faith shall be given in each state to the acts of the 



( 184 ) 

The next clause, To coin money, and the next. To 
regulate the value of foreign coin, and the next, To 
fix the standard of weights and measures, are all 
included in one, To coin money, regulate the value 
thereof and of foreign coin, and fix the standard of 
weights and measures. The next clause, To establish 
jjost-offices, becomes. To establish post-offices and 
post-roads. As observed before, both these powers 
had been exercised by Congress. The next clause 
To borrow money and emit bills on the credit of the 
United States, becomes To borrow money on the 
credit of the United States, the clause ''and emit 
bills" being stricken out, notwithstanding it was in 
the Confederation and was one of the most fre- 
quently exercised powers of Congress theretofore, as 
observed. But this power, among the powers of the 
several states as well as of Congress, had given oc- 
casion for the depreciated currency and upon consid- 
erable discussion, set forth in the Madison Debates, 
it was omitted from the particular powers of Con- 
gress.-"- 

The next clause. To appoint a treasurer by ballot, 
becomes by joint ballot, as observed. The next, To 
constitute tribunals inferior to the supreme court, 

legislatures and to the records and judicial proceedings of the courts and magis- 
trates of every other state." This was referred to committee, together with a 
proposition submitted, to establish uniform laws on the subject of bankrupt- 
cies. September 1st, the committee reported in favor of both, and adding a 
clause — also referred to them on the same day — empowering the legislature 
by general laws to prescribe the manner of proof of such acts and proceedings 
and the effect of judgments of one state in another. September 3d the report 
was adopted, the vote on bankruptcy being yeas, nine states, nay, one state. 
The connection of these provisions seem to be: By the Confederation full faith 
was given to judicial proceedings, but not to acts of the legislatures of the sev- 
eral states, and the insertion of acts of the legislatures in the rough draft from 
the Pickney draft was stated in debate on the day of reference to the committee 
to be in order to cover acts of the 1 gislatures on the subject of insolvency. So 
the committee's report and the grant of the convention of full faith in each 
state to acts of the legislatures of the several states was directed to acts of 
insolvency, and particular power was conferred on Congress to pass uniform 
laws upon that subject, that is on bankruptcies. Thus the bankruptcy power 
would appear to have been acquired in connection with the financial difficul- 
ties of the period, which occasioned so many of the provisions, beyond those 
appearing in the Confederation, as aforesaid. 

1 See also Fiske's Critical Period of American History. 



( 1«5 ) 

remains as before. The next, To make rules concern- 
ing captures on land and water, is included with two 
others, so the whole reads: To declare war, grant 
letters of marque and reprisal, and to make rules 
concerning captures on land and water. Power to 
declare war was in the rough draft, as observed, in 
the words, To make war. The substitution of the 
word "declare" for "make" appears to be because 
making war was more an executive than a legislative 
function. Power to grant letters of marque and re- 
prisal was from Confederation article 9, conferring 
power of '"granting letters of marque and reprisal 
in time of peace," but providing that Congress 
should never "engage in war; nor grant letters of 
marque and reprisal in time of peace" without the 
assent of nine states. This power had been frequent- 
ly exercised : March 27, '81 Congress passed an or- 
dinance granting letters of marque and reprisal, and 
tlie board of admiralty was directed to prepare in- 
structions to vessels commissioned for the purpose. 
And for rules concerning the same see December 4, 
'81, and February 26, '82 ; and the power appears to 
have been exercised at an earlier date during the war. 
Indeed it would seem the Confederation did not re- 
<|uire to express this power in time of war but only 
in time of peace. Here also three powers were in- 
cluded in one clause. 

The next clause, To declare the law and punish- 
ment of piracies and felonies committed on the high 
seas, and the punishment of counterfeiting the coin 
of the United States, and of offenses against the law 
of nations, which power had been exercised as three 
separate powers, as observed, is now again separated 
into two clauses becoming (1) To provide for the pun- 
ishment of counterfeiting the securities — being 
mainly bills of credit, particular power to issue 
which was omitted, as observed — and current coin of 
the United States, and (2) To define and punish pi- 



( 186 ) 

racies and felonies committed on the high seas and 
offenses against the law of nations. The next clause, 
To subdue a rebellion in any state on application of 
its legislature was omitted, being executive in na- 
ture and legislative power therefor appearing else- 
where. 

The next power, To make war, has been observed. 
The next, To raise armies, becomes. To raise and sup- 
port armies — but no appropriation of money to that 
use shall be for longer term than two years. Power 
to support as well as raise armies had been exercised 
during the war, of course. Limitation on the term 
of appropriation of money therefor is according to 
the British constitution, the reason assigned in de- 
bate in the convention for making the term two 
years here being that Congress was to be elected 
biennially and appropriations for only one year, 
might be inconvenient as there might be no session 
soon enough to renew them.^ The next power To 
build and equip fleets, becomes To provide and main- 
tain a navy, which had been done by Congress since 
1774, as obs,erved. The next To call forth the aid of 
the militia in order to execute the laws of the Union, 
enforce treaties, suppress insurrections and repel 
invasions, is so altered as to avoid executive func- 
tions, becoming power To provide for the calling 
forth of the militia to execute the laws of the Union, 
suppress insurrections and repel invasions. The last 
power To make all laws that shall be necessary and 
proper for carrying into execution the foregoing 
powers, etc., remains as in the rough draft. 

Then some powers appear in the revised draft 
which were not in the rough draft. Power to pro- 
mote the progress of science and the useful arts by 
securing for limited terms to authors and inventors 
the exclusive right to their respective writings and 

1 See September 5th in Madison's Debates. But this reason would scarcely 
appear to suffice since there was express provision in the Constitution at the 
time, that Congress should assemble once in each year. 



( 187 ) 

discoveries: This power had been exercised by Con- 
gress, as regards authors. May 2, '83, Congress rec- 
ommended to the several states to secure to authors 
or publishers of new books copyright of the same 
for a certain term, not less than fourteen years. And 
the power had been recently exercised in England.^ 
The next clause To make rules for the government 
and regulation of the land and naval forces appears 
in the Confederation article 9, conferring power of 
"making rules for the government and regulation of 
the said land and naval forces and for directing their 
operations." The next To provide for organizing, 
arming and disciplining the militia and for govern- 
ing such part of them as may be employed in the 
United States — reserving to the states respectively 
the appointment of the officers and the authority of 
training the militia according to the discipline pre- 
scribed by Congress — appears in the Confederation, 
article 9, in part. In further part its necessity was 
urged by General Washington in his Legacy June 
'83. The Confederation provided that Congress 
should have power to appoint all officers of the land 
forces in the service of the United States, except 
i'egimental officers, and to make requisitions on the 
several states for their quotas of militia according to 
theii* numbers of white inhabitants, such requisi- 
tions to be binding; and thereupon the legislature 
of each state was to appoint regimental officers, 
raise, clothe, arm and equip the men, after which the 
forces should march to the place appointed and with- 
in the time agreed on by Congress. But the several 
states having neglected their obligations in this 
respect, General Washington in his Letter to the gov- 
ernors and presidents of the several states on resign- 
ing command of the army urged that there should be 
a uniform system of militia.^ Power To exercise ex 

1 See, as to authors, 15 Geo. III., and as to inventors', 7 and 17 Geo. III. 

2 Bancroft's History of the United States, vol 6, pp. 83-86; Fiske's Critical 
Period of American History, p. 54. 



( 188 ) 

elusive legislation in all eases whatsoever over such 
district (not exceeding ten miles) as may by cession 
of particular states and the acceptance of Congress 
become the seat of government of the United States; 
and to exercise like authority over all places pur- 
chased by the consent of the legislature of the state 
in which the same shall be for the erection of forts, 
magazines, arsenals, dockyards and othei' needful 
buildings: December 23, '84, Congress had resolved 
to purchase soil and build thereon a federal House 
for Congress and for the executive officers thereof; 
a house for the president of Congress; buildings for 
the secretaries of foreign affairs, of war, of marine, 
of Congress and of the officers of the treasury. Oc- 
tober 21, '83, Congress had resolved similarly, the 
place selected for the said buildings being at or near 
the lower falls of Potomac or Georgetown, provided 
a suitable district on the banks of the river could 
be procured for a Federal toivn; and the right of soil 
and an eaeclusive jurisdiction, or such other as Con- 
gress maght direct was to become vested in the 
United States therefor.^ 

Thus all the legislative powers of the revised draft 
appear to have had precedents in 'Congress and to 
have been vested in Congress by the Confederation, 
either expressly, or by construction of Congress to 
whom the interpretation of their powers belong, by 
the exercise of those powers : except those offered by 
the Jersey plan and put in the foreground — the pow- 
er to lay and collect taxes, of regulation of commerce 
and of naturalization ; and except the power of bank- 
ruptcy, in addition, which, like all the others, ivas 
particularly required iviihin the eooperience of Con- 
gress by the Confederation or the Continental Con- 
gress. 

J In the Pinckney draft, probably from prior precedent, was power to Con- 
gress: To provide such dockyards and arsenals, and erect such fortifications as 
may be necessary for the United States, and to exercise exclusive jurisdiction 
therein. 



( 189 ) 

To continue the rough draft in the revised draft: 
article 7, section 2, of Treason, becomes article 3, 
section 3 of the revised draft w^ith some change cor- 
responding to Blackstone. The United States is 
still referred to in the plural number as "them" 
whereby the states might be considered either joint- 
ly or severally. Article 7, section 3, of direct taxa- 
tion was recouplecl with representation, as observed. 
Article 7, section 4, of the duty on exports and of 
the importation of slaves is article 1, section 9, para- 
graphs 1 and 5 but altered as to slaves to restrain 
any prohibition on their importation for 21 years, 
but allowing taxation on their importation not ex- 
ceeding ten dollars per person. Article 7, section 5 
of capitation taxes is article 1, section 9, paragraph 
4. Article 7, section 6 of navigation acts is omitted; 
as the result of the compromise of the northern and 
southern states restraining Congress from taxing ex- 
ports or prohibiting the importation of slaves for 21 
years, though their importation might be taxed as 
aforesaid. This compromise was effected in commit- 
tee: referred to committee August 22; August 24 
the committee reported the compromise; and August 
25 and 29 the matter was taken up and the report 
adopted.^ Article 7, section 7 of titles of nobility, is ar- 
ticle 1, section 9, paragraph 7 ; and paragraph 8 is add- 
ed from the Confederation, article 6, paragraph 1 that 
no person holding ol^.ce under the United States 
shall accept any present or title or — etc., from any 
foreign state. 

Article 8 of the supremacy of the laws pursuant to 
the Constitution and of the treaties of the United 
States is article 6, paragraph 2 but altered by put- 
ting "Constitution" before the "laws and treaties" 
which arrangement was according to the order of 
the authority of the words, the Constitution being 
the supreme law. And the phrase " law of the land " 

1 Madison's Debates, August 29, and note. 



( 190) 

was substituted for tlie phrase "law of the several 
states; in the original resolution of Congress 
wherefrom this article was drawn and in the Pinck- 
ney draft the phrase had been " law of the land."^ It 
may also be observed that this supremacy power is 
no longer among the powers of Congress as it had 
been from the beginning, but is now arranged in the 
revised draft at the end of the Constitution. This was 
done by the committee on revision of style and ar- 
rangement. It would appear that this may leave it 
open to interpretation and construction to determine 
to whom belongs the power of interpretation and con- 
struction, to the legislative, executive or judiciary. 

Article 9, section 1 that power to make treaties, 
appoint ambassadors and judges of the supreme 
court should be in the senate, the branch composed 
according to the federal plan as in the Confedera- 
tion, w^as omitted, and instead it is provided that the 
president shall have this power by and with the ad- 
vice and consent of the senate, article 2, section 2, 
paragraph 3. This strengthened the executive by 
power approaching that of the executive of Great 
Britain to whom the house of lords is the great coun- 
cil, so called, for these purposes.^ To this strengthen- 
ing of the executive the adherents of the federal plan 
appear to have consented on the several states be- 
ing given the same voice in the election of the presi- 
dent by the people — by the " electoral college " — that 
they had acquired in Congress and his election 
thereby, as has been observed. The provision that to 
the contirmation of treaties two-thirds of the senate 
should be required to concur would appear to have 
been occasioned by the very recent and strenuous ob- 
jections of the several states to the provisions of cer- 
tain treaties as that with Great Britain then in force. 

1 See Journal, August 23d and 25th. The Pinckney draft also contained a 
t)ower of direct negative on the several states' laws— Article XI, but the con- 
vention having rejected it, as observed, it does not appear in the rough draft 
of the constitution. 

2 Black. Com., book 1, chap. 5, pp. 227-8. 



( 191 ) 

Article 9, sections 2 and 3 empowering the senate to 
determine controversies between the several states 
respecting jurisdiction or territory and controversies 
concerning lands claimed under grants from differ- 
ent states, as in the Confederation, is omitted and 
this power is included among those conferred on the 
judiciary, which is vested with jurisdiction of all 
controversies between the several states, article 3, 
section 2. 

Article 10, section 1, of the president is article 2, 
section 1, paragraphs 1, 2, 3, and 4, the provisions 
concerning the executive being much altered and 
amended so that instead of his being elected by Con- 
gress for the term of seven years and ineligible a sec- 
ond time, his term is now four years, the ineligibility 
is omitted and his election is to be by a body in the 
nature of a Congress chosen specially for this pur- 
pose and electing by joint ballot: that is by the 
several states appointing electors equal in num- 
ber to their numbers of members of both houses 
of Congress, these electors to meet and ballot 
for president. If no one have a majority the 
house of representatives should from the candidates 
make an election, voting however as states equally 
as in the senate; the election thus resting with the 
several states, the members of the Union, represent- 
ed as in both houses of Congress in the first instance, 
but finally with the several states as equals as in the 
senate, yet by the body elected by the people. Pro- 
vision for the vice-president was the same as to his 
term, his re-eligibility and his election. Article 10, 
section 2 of the powers, qualifications, etc., of the 
president is in article 2 section 3, and section 2, para- 
graphs 1 and 2, provision being added for the presi- 
dent's requiring opinions from the executive depart- 
ments, thus recognizing th^ cabinet which existed in 
the Confederation as has been observed, similar to 
the privy council or cabinet of the British executive. 



( 192 ) 

And. appointments to offices are to be made by and 
with the advice and consent of the senate, but the ex- 
ecutive may fill vacancies by commissions to expire at 
the end of the next session. The form of the oath 
of the president is added to and his qualifications 
prescribed, that he should be a citizen, natural born, 
or at the adoption of the Constitution, 35 years of age, 
and a resident of the United States 14 years. The 
grounds of removal from office of the president and 
of civil officers are defined to be impeachment for 
and conviction of treason, bribery or other high 
crimes or misdemeanors, and in case of the vacation 
of the office of president in any manner its exercise 
should devolve on the vice-president, thence as Con- 
gress might provide. 

Article 11, sections 1 and 2 of the judicial power is 
ai-ticle 3, section 1. Article 11, section 3 of the juris- 
diction of the judiciary is article 3, section 2, para- 
graphs 1 and 2, omitting jurisdiction to try impeach- 
ments, conferred on the senate as observed, and in- 
serting jurisdiction of cases arising under treaties, 
and controversies to which the United States should 
be a party, and controversies between states regard- 
ing territory or jurisdiction, and between citizens of 
the same State claiming land under grants of dif- 
ferent states. Controversies between states regard- 
ing jurisdiction or territoiw and between citizens 
of the same State claiming land under grants of dif- 
ferent states were taken from the senate as observed; 
controversies to which the United States should be a 
party and cases arising under treaties appeared in 
the Jersey plan though there the former extended 
only to disputes between the United States and an 
individual state respecting territory. And juris- 
diction of all cases arising under the laws of the 
United States becomes jurisdiction of all cases in 
law and equity arising under the Constitution and 
laws of the United States, the phrase '' law and 



( 193 ) 

equity" being according to precedent, and the ar- 
rangement of "Constitution" before "laws" being ac- 
cording to the order of tlie authority of the words. 
Article 11, section 4 of jury trial is article 3, section 
2, paragraph 3, adding that Congress may provide 
for the place of trial of crimes not committed in any 
state. Article 11, section 5 of the extent to which 
judgments in impeachment shall go is paragraph 7, 
section 3, article 1. 

Articles 12 and 13, putting prohibitions on the sev- 
eral states, is article 1, section 10, adding prohibition 
against the states passing bills of attainder or ex 
post facto laws, or laws impairing the obligation of 
contracts. That respecting bills of attainder and ex 
post facto laws is in Blackstone;^ the same prohibi- 
tion is extended to Congress in the revised draft by 
article 1, section 9. The prohibition of laws impair- 
ing the obligation of contracts was occasioned by the 
laws of the several states making payment of debts in 
depreciated currency, as appears from the histories of 
the times. Prohibition against the suspension of 
habeas corpus by Congress, which also appeared in 
the revised draft, is from Blackstone.^ 

Article 14, securing the privileges and immunities 
of citizens of each state in the several states, is article 
4, section 2, paragraph 1. Article 15 of fugitives from 
justice is article 4, section 2, paragraph 2; and para- 
graph 3 is added to article 4, section 2, providing for 
the delivering up of escaped slaves. This power 
finds its origin in the Confederation, article 4, au- 
thorizing the "removal of property imported into any 
state from any other state of which the owner is an 
inhabitant." Article 16 respecting the faith to be 
given in each state to the public acts, records and 
judicial proceedings of the several states, is article 
4, section 1 adding that Congress may by general 
laws provide the manner of proof of such acts and 

1 Book 4, chap. 19, p. 259: Introd., sec. 2, p. 46. 
- Book 1, chap. 1, p. 136. 



( 194 ) 

tlie effect thereof. It was observed in convention 
that unless Congress prescribed the effect of such 
acts and proceedings the provision would be no more 
than takes place regardless of it among independent 
nations, which observation appears likely to have 
supplied the reason of the provision. Article 17 of 
the admission of new states is article 4, section 3, 
paragraph 1 with some changes. The phrase "with- 
in the limits of the United States" is omitted and in- 
stead it is declared that new states may be admitted 
by Congress "into this Union." But it may be sub- 
mitted that the "Union" implies its limits whatever 
they may be interpreted to be. Provision is added 
that no state shall be formed by the junction of two 
or more states, or parts of states, without the con- 
sent of such states; and the clauses that admission of 
new states be on the same terms as the original 
states, except as to conditions concerning the public 
debt — as also that requiring the consent of two-thirds 
present in each house to admission — is omitted; thus 
leaving it open to interpretation whether the admis- 
sion of new states may be subject to conditions other 
than those imposed upon the original states; but the 
original states are assured their territorial integrity. 
Then a new provision is added that Congress shall 
have power to dispose of and make all needful rules 
and regulations respecting the territory or other prop- 
erty belonging to the United States ; and nothing in 
the Constitution shall be so construed as to prejudice 
any claim of the United States, or of any particular 
state. This power over the territory of the United 
States had already been exercised by Congress by 
the ordinance of 1787. 

Article 18 of the guaranty of the United States to 
each state is article 4, section 4, adding that applica- 
tion for protection may be by the executive as well 
as the legislative. Article 19 of amending the Con- 
stitution is article 5, adding that the Constitution 
may be amended whenever two-thirds of both houses 



( 195 ) 

of Congress shall deem necessary — as well as on ap- 
IDlication of two-thirds of the legislatures of the sev- 
ral states ; and that amendments shall be valid when 
ratified by the legislatures or conventions of three- 
fourths of the several states — excepting, however, 

that no amendment for 21 years shall effect 

article, section. Article 20 respecting the oaths 

of ojGficers of the United States and the several states 
is article 6, paragraph 3, adding that no religious 
test shall ever be required.^ 

Article 21 is article 7 providing that the ratifica- 
tion of the conventions of nine states be sufficient for 
the establishment of the Constitution between the 
states ratifying. Nine states appears to have 
meant the certain majority of the people of the 
United States as has^ been observed. And nine 
states being between two-thirds and three-fourths of 
thirteen states, it may be that amendments by two- 
tliirds and three-fourths of the states was taken to 
mean amendments by a certain majority of the people 
of the United States. It is evident repeatedly in the 
debates that nine states was taken to mean a certain 
majority of the people of the Union. 

Article 22 on the same is omitted. So is article 
23. Article 6, paragraph 1 of the revised draft that 
all debts contracted and engagements entered into 
prior thereto be valid, is according to article 12 of 
the Confederation. 

The following appear to be the alterations from 
the rough draft to the revised draft subsequent to 
the legislative powers: That respecting treason; and 
respecting exports and the importation of slaves. 
The navigation act provision was omitted. Power to 
make treaties, appoint ambassadors and judges was 
withdrawn from the senate and conferred on the 
president by and Avith the advice and consent of the 
senate, and the same advice and consent was required 

1 See Black. Com., bosk 4, chap. 4. Freedom from religious tests was, of 
course, one of the great objects of the colonies in their previous history. 



( 196 ) 

to appoint officers of the United States. Certain con- 
troversies between states and between citizens of 
the same state, from the Confederation, are trans- 
ferred from the senate to the judiciary. The term 
of the president becomes four years, he is no longer in 
eligible again, and the "electoral college" is estab- 
lished. The same aj)pears for the vice-president. 
There are amendments to the president's powers and 
qualifications, the cabinet is recognized and provis- 
ion made for the succession upon vacancy in the of- 
fice of president. The trial of impeachments is 
transferred from the judiciary to the senate. Trial 
by jury outside of the several states is provided for. 
Prohibition against bills of attainder and ex post 
facto laws by Congress or the several states, and 
against laws impairing the obligation of contracts 
by the several states is inserted. Provision respect- 
ing escaped slaves is inserted. Alteration is made in 
the provision for new states, and provision is added 
for the government of the territories. Ratification 
of the Constitution is to be by nine states and future 
amendments by two-thirds and three-fourths of the 
states. Prohibition arainst religious tests for office 
is inserted. 

Of all the changes from the rough draft appearing 
in the revised draft perhaps these are the leading 
ones: In requiring more years of citizenship as a 
qualification for senators and representatives. In 
the power of the senate to amend revenue bills; and 
their power to try impeachments, withdrawn from 
the judiciary. Power of the executive instead of 
the senate to make treaties and appoint ambassa- 
dors and judges, but by and with the advice and con- 
sent of the senate; that advice and consent being also 
added in the appointment to offices by the executive. 
The election of the president by the special body com- 
posed like Congress, rather than by Congress, with 
the term of office reduced from seven years to four 



( 197 ) 

years, but with re-eligibility. The institution of the 
vice-presidency for the sucession to the presidency. 
The transfer to the judiciary of the controversies be- 
tween states and under grants from different states 
which in the rough draft were given to the senate 
from the Pinckney draft, having belonged by the 
Confederation to Congress. The reservation to the 
original states of their territorial integrity, with the 
omission of the assurance to new states of their ad- 
mission on equal terms with the original states. Pro- 
vision for the government of the territories ; and for 
the ratification of, and for amendments to the Consti- 
tution. All appear according to the national plan yet 
interpretable to the federal plan. Precedent does not 
appear to have been so closely followed by the con- 
vention in the later period of their existence yet in 
most cases it was adhered to. For the leading inno- 
vation in the election of the president there was some 
precedent in the constitution of the state of Mary- 
land where there was election by electors chosen by 
the people as here established for the presidency, but 
there it was election for the senate. 



FEOM THE REVISED DRAFT TO THE 
SIGNING OF THE CONSTITUTION. 

During- the four days which elapsed — only three 
days leaving out Sunday — between the report of the 
revised draft to the convention and the day of the sign- 
ing of the completed instrument there were but few 
changes : The ratio of representation was altered from 
one to 40,000 inhabitants to one to 30,000 inhabitants. 
Instruction was inserted to the several state legisla- 
tures to fill vacancies in the senate. The place of 
choosing senators was excepted from the regulation 
of Congress over the choosing senators and repre- 
sentatives, as the place of choosing senators would 
be the capital city of each state; this exception oc- 
curred in the Pinckney draft. The clause prescrib- 
ing the enacting style of laws was omitted as super- 
fluous. Provision that every order, resolution or 
vote should be passed over the executive veto by 
three-fourths of each house was altered to two-thirds 
as in the cases of bills, thus rendering the provision 
virtually nugatory. Power of Congress by joint 
ballot to appoint a treasurer was omitted as being 
executive in nature. After the power of Congress 
to lay and collect taxes, duties, imposts and excises, 
to pay the debts and provide for the common defense 
and general welfare of the United States, was added 
"but all duties, imposts and excises shall be uniform 
throughout the United States. This rule of uni- 
formity for duties extending throughout the con- 
stituent bodies collectively, the principal forms 
whereof were stamp-duties, imposts and excises, as 
observed, was the rule in Great Britain and thence 
in the several colonies and the several states.^ 

1 See authorities cited on direct taxes, duties, imposts and excises. 



( 199 ) 

The clause that no capitation tax be laid except 
according to the census was changed to read that no 
capitation "or other direct" tax be laid except ac- 
cording to the census "or enumeration" aforesaid, 
thus confirming the rule of direct taxation to the sev- 
eral states, capitation taxes being direct taxes as has 
been observed. After prohibition of the taxation of 
exports, provision was made against discrimination 
among the several states by preferences in the regu 
lation of commerce; and after the provision for draw- 
ing money from the treasury only by appropriation it 
was added that statements of accounts of public 
moneys should be published periodically. From the 
prohibition on the states' laying import or exj)ort 
duties were excepted such duties for the purpose of 
executing inspection laws, the net produce thereof to 
be to the treasury of the United States, and such 
laws to be subject to revision and control by Con- 
gress; and it was added that no state should lay any 
duty on tonnage without consent of Congress. 
Where the executive had power to appoint officers of 
the United States by and with the advice and con- 
sent of the senate it was conditioned that Congress 
might by law vest the appointment of such inferior 
officers as they should deem proper in the president 
alone, in the courts of law or in the heads of depart- 
ments. The chief executive was prohibited from 
receiving any other emolument than his fixed com- 
pensation, from the United States or any of them. 
Finally provision was added to the article on amend- 
ing the Constitution that no state should without its 
consent be deprived of equal suffrage in the senate, 
thus further assuring the equality of power of the 
original states as their integrity of territory had been 
assured in the provision for new states, as observed. 
On September 15, which was practically the last work- 
ing day of the convention, the Journal shows two mo- 
tions made to preserve to the several states their 



( 200 ) 

internal police in connection with their equality of 
sulfrage in the senate, but the motions passed in the 
negative both times. In the article on amendments 
also, the blanks left in the revised draft were filled in 
so that no amendment for 21 years should affect the 
restraints on Congress concerning capitation taxes 
and the importation of slaves. Thus were preserved 
the privileges of slavery along with the privileges of 
the original states in the senate, in the article on 
amendments. 

Further in that article it was provided that on the 
application of the legislatures of two-thirds of the 
states for amending the Constitution Congress 
should, instead of themselves proposing the amend- 
ments, call conventions for the purpose, so that 
amendments originating outside of Congress would 
be made as was the Constitution, in convention chos- 
en for that purpose, rather than by Congress as was 
the Confederation. Yet two-thirds of Congress could 
also propose amendments w^hich should be valid 
when ratified by three-fourths of the several legisla- 
tures, as observed. Amendments would be by the 
states jointly and severally, they being represented 
jointly by Congress or by a convention for the pur- 
pose, and severally by the state legislatures, two- 
thirds and three-fourths of the states jointly and 
severally approximating, it would appear, a certain 
majority of the people of the United States. 



FEOM SEPTEMBEE 1774 THROUGH SEP- 
TEMBER 1787. 

The several colonies were members of the United 
Kingdom of Great Britain and the government 
thereof seeking to levy taxes on them, both severally 
and jointly, directly and indirectly, and asserting the 
right to bind them by all laws whatsoever, they de- 
nied both unless they should have representation in 
Parliament, which would have put them on equal 
footing with the constituent bodies of England hav- 
ing representation in Parliament. Being denied 
this they formed a new union of America, therein ac- 
quiring the representation denied them in Great 
Britain, which representation in the Union of Amer- 
ica with the right of self government in their sepa- 
rate affairs constituted them states when they should 
become known to the law. July 4, '76, the new 
Union assumed to be the United States of America 
and by the representatives of the United States of 
America in general Congress assembled declared 
the United Colonies to be free and independent states 
absolved from allegiance to Great Britain, and hav- 
ing full power to levy war. conclude peace, etc., and 
do all other acts which independent states may do. 
Thus the states arose jointly and severally by their 
joint act, and Congress representing the Union of 
America levied war and provided for the common 
defense and general welfare during the Revolution, 
and levied direct taxes on the several states therefor, 
according to their numbers including all the slaves. 

Meanwhile, prior to the Declaration the govern- 
ment of the states jointly and severally was pro- 
jected, by Congress resolving that the exercise of 
every kind of authority under the crown should be 



( 202 ) 

suppressed and all the powers of government ex- 
erted under the authority of the people of the Colo- 
nies, thus abolishing monarchy and instituting a Re- 
public; and by Congress recommending to the sev- 
eral Colonies to adopt such governments as in the 
opinion of the representatives of the people should 
best conduce to the safety and happiness of their con- 
stituents in particular and America in general, 
whereby the several governments would be estab- 
lished by the representatives of the people severally 
but by authority of the people jointly, and for the 
people both severally and jointly. Prior to the Dec- 
laration also, Congress appointed a committee to 
draft articles of Confederation and perpetual Union 
to be made by Congress and ratified by the several 
legislatures for the common defense and general wel- 
fare, whereby the government of the Union would be 
by the representatives of the people jointly, ratified 
and confirmed by them severally, and for the people 
jointly and severally; so that both the joint and sev- 
eral governments of the people would be both by and 
for the states jointly and severally.^ 

Thus the matter stood harmonious at the Declara- 
tion from the foresight of Congress, and here ap- 
peared the conception quoted afterwards so often in 
the constitutional convention likening the United 
States and the several states and their citizens to a 
planetary system where one body controls many 
smaller bodies each of which controls many still 
smaller in their orbits; and the application to the 
Union of many members of America, as to the sev- 
eral states of many members, of the motto — E plur- 
ibus TJnum.^ 

1 The saying of President Lincoln of " government of the people, for the peo- 
ple, and by the people," appears true and illustrative of the governments joint 
and several, for the governments of the United States and the several states are 
governments of the people jointly and severally, every government being both 
by and for the people jointly and severally. 

2 Of this harmony Mr. Wilson said in the constitutional convention; 
" Among the first sentiments expressed in the first Congress one was that Vir- 



( 203 ) 

The name The Articles of Confederation and Per- 
petual Union signifies a double sovereignty of the 
states severally and jointly, and it was declared in 
Congress repeatedly^ — even in the same instrument — 
of the United States and of the several states, that 
they were free sovereign and independent; meaning 
no doubt so far as the conception was carried out — ■ 
which by reason of the harmony in the face of Great 
Britain it was not always — that they were sovereign 
for their joint and separate purposes. According to 
this is the leading principle of the Articles, the prin- 
ciple of legislation by Congress and execution and 
administration by the several states, which was no 
doubt drawn from political philosophy, having been 
thus stated since : " The authority which is most con- 
versant with principles should be supreme over prin- 
ciples, while that which is most competent in details 
should have details left to it. The principal business 
of the central authority should be to give instruction, 
of the local authority to apply it. Power may be 
localized, but knowledge to be most useful must be 
centralized."^ Thus Congress would instruct and 
the several states apply; legislative power belong- 
ing to the one, administrative and executive power 
to the other. 

The purposes of the Confederation and Union are 
stated to be common defense, mutual and general 
welfare and security of liberty. The purposes of 
Congress are the general interests of the Union, the 
common defense and general welfare, and therefor 
all charges of war and other expenses were to be de- 
frayed out of the common treasury to be supplied by 
the several states, and they were pledged to abide 
by the determination of Congress on all matters sub- 
mitted to that body. 

ginia is no more, that Massachusetts is no more, that Pennsylvania is no 
more, etc. ; we are one nation [of brethren; we must bury all local interests and 
distinctions. This language continued for some time. The tables at length 
began to turn." June 8; Madison's Debates. 
1 From John Stuart Mill. 



( 204 ) 

If the harmony of the period of the Declaration 
]iad been perpetuated and the several states had con- 
tinued to abide by the determination of Congress to 
supply the common treasury the charges of war and 
all other expenses would have been defrayed and the 
common defense and general welfare provided for by 
the legislation of Congress and the execution and ad- 
ministration of the several states. The power of 
Congress was interpreted to be power for the general 
interests of the Union or for the common defense and 
general welfare- — in law although not in fact ob- 
served, — as witness the argument of Mr. Wilson in 
the matter of the Bank of North America ordained 
by Congress by authority of the Confederation, as 
well as the liberal interpretation of Congress of their 
own powers all during the Confederation: and Con- 
gress seeking to preserve the harmony used language 
of recommendation and request to the several states 
according to the practice adopted before the Articles 
were made and ratified.^ The Journal of Congress 
during the Confederation is filled with communica- 
tions between the United States and the several 
states, recommendations and directions of Congress 
to the latter, accounts concerning quotas of revenue 
and of troops required from the several states. 

In so far as the Confederation and Union was not 
interpreted or made to confer on Congress power to 
provide for the common defense and general welfare 
the reason would appear to be as follows: While 
the several state constitutions were drawn on the 
recommendation and direction of Congress immedi- 
ately from the several colonial charters the Articles 
of Confederation and Perpetual Union were sixteen 
months in the making; from prior to the Declaration 
to the middle of November, '77, after the surrender 
of Burgoyne and the end of the campaign around 

1 And according, also, to the law of precatory trusts, which also arose out 
of non-obligatory recommendations and requests afterward made binding — 
thus occasioning the origin of the practice, it may be. 



( 205 ) 

Saratoga brought independence of Great Britain 
into siglit as matter of fact. As tlie fear of Great 
Britain subsided the ambition and jealousy of the 
seA^eral states arose, the necessity for perfect union 
which had been recognized prior to the Declaration 
appeared to decline, and the ancient habit of the 
people rendering allegiance to the several state gov- 
ernments they conceived themselves in the same at- 
titude against the Union that they had occupied 
against Great Britain, notwithstanding their repre- 
sentation in the Union. They conceived they were 
not to be interfered with in their internal police or 
to be taxed without the absolute consent of their sev- 
eral legislatures; and this view led to that of their 
separate independent sovereignty as absolute, rather 
than as qualified and restrained to their independent 
or local purposes. From this it followed that the 
Union was derived from their separate powers and 
was but their common agent, the representatives in 
Congress being their representatives, the represen- 
tatives of the several states instead of the represen- 
tatives of the United States as expressed in the Dec- 
laration of Independence. Accordingly the deter- 
minations of Congress would be ultimately review- 
able by the several legislatures, to be interpreted, 
administered and executed at their will and pleas- 
ure. So the several states by interpretation re- 
stricted the powers of Congress and neglected to ex- 
ecute them, and the ancient habit of the people per- 
mitting the subordination of the conception of Union 
to that of Confederation, the last words of the Arti- 
cles were frequently dropped and they were no 
longer considered as Articles of Perpetual Union, as 
well as of Confederation, but as of Confederation 
alone; and though by the advocates of Union they 
were sometimes called Articles of Union, as appears 
in the constitutional convention in the Virginia 
plan, the resolutions of the committee of the whole 



( 206 ) 

and in convention, those advocates were so few, and 
so little did they impress the histories of the day that 
the phrase "articles of union" comes from the records 
with a strange sound. 

Thus government by the Articles of Confederation, 
as they are always called — though looked at from 
the side of the future they were better called the 
articles of Union — failed for want of interpretation 
and construction as a sovereign power and independ- 
ent nation, and for lack of faculty to coerce the sev- 
eral states, its members, to execute and administer its 
powers, or to execute or administer them itself. It 
required to coerce their agency, or renounce it by ac- 
quiring its own faculties of execution and adminis- 
tration, and then construe its frame of government, 
not as a frame within which to confine it, but as a 
frame or skeleton whereon to grow So in the con- 
stitutional convention it was at once resolved that 
the government should consist of supreme legisla- 
tive, judiciary and executive and later it was re- 
solved that the legislature would have one general 
power of perfect union according to the purposes of 
Congress by the Confederation and the legislative 
power of precedent constitutions. That the Jersey 
plan offered the judiciary and the executive powers 
in such measure as it did, offering the executive gen- 
eral power to execute the laws, and never strenu- 
ously contesting the judicial general power over all 
cases in law and equity arising under the Constitu- 
tion and laws, exhibits the necessity of conferring 
those powers on the Union to have been well proven, 
and that, restrained by the legislative, they were lit- 
tle feared by the several states. 

But if the United States government was to have 
judicial and executive power, the legislation of Con- 
gress could no more be disregarded by the several 
states and it followed that in order to withhold the 
supremacy of the United States the several states 
must enter Congress and there oppose and negative 



( 207 ) 

legislation inimical to the several states, and therein 
construe the government to the federal plan. This 
explains why the adherents of the Jersey plan con- 
curred so readily with the advocates of Union in 
changing Congress from one to two houses, while 
standing out strongly for choice of members of one 
house by the several legislatures voting as equals; 
and later insisting on the senate having power to 
propose and concur with amendments on revenue 
bills — all to contest the supremacy of the United 
States in legislation and construe the government to 
the federal plan. 

On the side of Union the government being 
strengthened by the addition of judiciary and execu- 
tive to administer and execute the powers of Con- 
gress, and the same requiring to be interpreted ac- 
cording to the purposes of Congress by the Confeder- 
ation and Union, according to the precedent consti- 
tution, it appears natural enough for the convention 
to have proceeded throughout according to those 
constitutions; for in their first and second sessions 
the Continental Congress had asserted again and 
again the right of the people of America to the Brit- 
ish constitution,^ which finally was renounced only 
by reason of its violation by the abuses and usui^pa- 
tions of the personal government of George III. And 
monarchy and nobility having been abolished and a 
republic established by authority ot the people, it 
only remained to turn the parts of the British con- 
stitution end for end, which was done by the Vir- 
ginia plan naming the popular branch of the legisla- 
tive first, and continued in the resolutions of the 
committee of the whole and in convention — though 
afterward the order was reversed and the senate 
named before the house of representatives, according 
to the precedents — and then derive the second 
branch of the legislative, which had represented the 

1 See December 6, '75. Declaration of the Colonies on the King's Proclama- 
iiion of August 23, '74. 



( 208 ) 

nobility, from the people; and also the executive, 
whose authority, however, should perhaps — like his 
term — be curtailed, judging by the experience of the 
crown and the crown governors. Such government 
would have the strength which in the face of Great 
Britain was not required, by reason of the harmony 
then prevailing, which led to dependence on the sev- 
eral states for executing and administering the power 
of Congress. 

Thus it came about that the advocates of 
Union, for lack of precedent in the composition of 
the second branch of the legislature, were divided 
thereupon — as witness the difference between the 
Virginia plan and the Pinckney draft thereon — and 
the composition of this branch became the focus of 
ox)position of the several states, seeking means to 
contest the control of the government and its inter- 
pretation to their purposes. Prior to the attain- 
ment of the compromise on this point, out of the 
earnest purposes of the members of the convention 
the feeling became intense, and the situation such, 
as Mr. Madison says led to serious anxiety for the 
result of the convention. Here occurred a sugges- 
tion which in the light of the allegiance the several 
states obtained in subsequent history, appears 
singular enough. Adherents of the Jersey plan sug- 
gested, and the suggestion would appear to have 
been in the nature of an offer, to throw the several 
states into hotchpot, wiping out state lines alto- 
gether, and then to re-divide the territory of the 
United States into as many equal portions as there 
were states.^ Blackstone speaks of the ancient di- 
nsions of England having been abrogated by the 
re-division of the kingdom into its counties, in the 
time of King Alfred — who also instituted uniform 
laws to be observed throughout the kingdom, which 
work was afterward carried to completion — and this 
precedent, in Blackstone, could scarcely have es- 

1 Madison's Debates, June 9 and 16. 



( 209 ) 

caped the notice of those reviving the project now. 
Again there was at this period — as well as at other 
times — considerable discussion and advocacy of 
abolishing the several state governments altogether 
and establishing one general system for the entire 
country. These incidents are sufficient to illustrate 
that to conceive the instrument as it came from the 
convention requires considerable divestiture of cus- 
tomary prepossessions. It may be there is no better 
measure of how profoundly the convention was 
stirred in this crisis than the emotional address of 
Dr. Franklin, then 81 years of age, the patriarch of 
the convention, wherein he said that he had lived, 
sir, a long time, and the longer he lived, the more 
convincing j)roof he saw of the truth — that God gov- 
erns in the affairs of men; and he moved for prayers. 

After the compromise the powers, the United 
States and the several states, knew their relative 
strength and proceedings went smoothly, being in- 
terpretable to the purposes of all, for the composi- 
tion of the second branch of the legislature accord- 
ing to the federal plan, not only afforded the several 
states an opportunity to realize their supremacy and 
interpret the government according thereto, but was 
also interpretable as merely granting to the several 
vStates in the second branch the ancient privileges en- 
joyed by the nobility in England, and, in imitation 
thereof, still belonging to members of the upper 
house in the several state legislatures. 

Accordingly, it appearing later that the executive 
should not depend on Congress for his election, the 
" electoral college " adopted for the purpose, was com- 
posed like Congress with similar privileges to the 
several states in his election and similar opportunity 
to control the government by the executive; and the 
jealousy of the executive power exhibited by the 
Jersey plan appears to have been allayed, as its ad- 
herents concurred, apparently, in conferring on the 



( 210 ) 

president by and with the advice and consent of the 
senate, the great powers of making treaties, appoint- 
ing ambassadors and judges, which in the Pinckney 
draft had been left to the senate alone — according to 
British precedents. Yet a single executive with such 
Xjower it was, that withheld some of the signatures 
of members. 

The national plan having conferred on the legisla- 
tive one general power, and the Jersey plan several 
j)articular powers, it being the same with regard to 
the judicial power, but both agreeing in conferring 
on the executive general executive power — the Jer- 
sey plan's objection to the executive having been to 
the executive negative — the Constitution included 
both plans, w^hereby while the several states con- 
trolled the government as they had during the Con- 
federation, legislative power would be interpreted 
as several particular powers, the general jDower 
being but the purpose of Congress, or being 
a general power merely introductory to the 
succeeding particular powers — as will appear; 
but when the government should pass in fact 
to the Union Congress might exercise general power 
to provide for the common defense and general wel- 
fare of the United States. Likewise judicial power 
might be interpreted as several particular powers, 
the general power being but introductory to them, 
yet interpretable as general power, as occasion 
arose by the government passing to the 
Union: After which the several particular 
powers, judicial or legislative, would be super- 
fluous. Executive power would always be gen- 
eral according to both plans. Notwithstanding this, 
however, the several states endeavored successively 
to obtain express reservation of their internal police 
— twice at the end of the convention in connection 
with their equality of suffrage in the senate, in arti- 
cle 5 on amendments, as observed. 



( '^11 ) 

That tlie convention sought harmony such as had 
prevailed against Great Britain is shown in the great 
number of resolutions passed without dissent, by the 
expressions in debate and the display made after- 
ward of the unanimity of the convention in signing 
the Constitution, — all brought about by the require- 
ments of the period and the preservation of the 
Union. Of this harmony Mr. Madison speaks thus, 
at the end of his introduction to his private journal 
of the debates in the convention: "But whatever 
may be the judgment pronounced on the competency 
of the architects of the Constitution, or whatever 
may be the destiny of the edifice proposed by them, 
T feel it a duty to express my profound and solemn 
conviction, derived from my intimate opportunity of 
observing and appreciating the views of the conven- 
tion, collectively and individually, that there never 
was an assemblage of men, charged with a great and 
arduous trust, who were more pure in their motives, 
or more exclusively or anxiously devoted to the ob- 
ject committed to them, than were the members of 
the Federal Convention of 1787 to the object of devis- 
ing and proposing a constitutional system which 
should best supply the defects of that which it was to 
replace and best secure the permanent liberty and 
happiness of their country." Mr. Madison says the 
Jersey plan was " concerted "^ among the deputations 
from Connecticut, New Jersey, &c., or members 
thereof; and assuming this to be true, the pursuance 
of the Virginia plan in the resolutions of the conven- 
tion in committee and again in convention, and the 
following of the Pinckney draft submitted with the 
Virginia plan in the rough draft of the Constitution, 
conforming it to the resolutions of the convention, 
w^ith so few changes, down to the revision of the 
style and arrangement of the articles agreed to, in 
comndttee, and thereafter — the whole derived from 

1 His Debates, June 15th, note. 



( 212 ) 

the Confederation and Union, and according with 
the constitutions of Great Britain and the several 
states in substance and in form, yet interpretable to 
the Jersey plan, supply accumulated and multiplied 
evidence that if nothing was concerted besides the 
Jersey plan, yet the members were led to act with 
great concord, Avhen their proceedings are viewed 
after the lapse of a century. But, however, the pow- 
ers, the United States and the several states, which 
had dwelt apart each within its own government 
were locked up in one government thenceforth, to 
settle the question of supremacy, and the freedom 
permitted to interpret the government either way is 
shown by the making of the compromises in commit- 
tees, no record of whose proceedings were preserved. 
The instrument was arranged in the order preserved 
through the convention, consideration being given in 
the j&rst article to the legislative, in the second arti- 
cle to the executive and to the judiciary in the third 
article, which order was according to the Pinckney 
draft and the several state constitutions. Article 4 
considers the several states. Article 5 amendments; 
article 6 is miscellaneous; and article 7 the ratifica- 
tion. 



OF THE INTEEPKETATION. 

Being established, the Constitution was consid- 
ered by all the powers as a frame of government, but 
for the several states it was a frame within which to 
restrain and confine the government by the strict 
rule of agency as the common agent of the several 
states, while for the Union it was a frame or skele- 
ton whereon the government of sovereign power 
fashioned on the principles of the race was to grow. 
That the political party of the national jDlan in the 
convention took the name Federalist is evidence of 
how" far the convention was ahead of the country, 
and that the latter was not yet consolidated enough 
for the former name, which j)erhaps continued to be 
the fact until the appearance of that name in the Na- 
tional Republican iDarty. But the Federal i3arty inter- 
preted the government as national rather than as 
federal as the name was known to the Jersey plan. 
The government was called a federal republic, or a 
federal empire by Mr. Hamilton, to whom the adop- 
tion of the name Federal as a party name may per- 
haps be traced, from the collection of essays by that 
name. By consent of that party no doubt, the Jour- 
nal came to be called the Journal of the Federal Con- 
vention. But when President Washington was in- 
augurated it was with the acclaim Long live Presi- 
dent Washington, first ]3resident of the United 
States — after the English custom. The alien and 
sedition laws proceeding from the Federal party, 
were pursuant to similar ones enacted by the Brit- 
ish Parliament on the occasion of troubles with the 
French Directory, and occasioned the Virginia and 
Kentucky Resolutions, approaching the extreme 
theory of the ultimate supremacy of the several 



( 214 ) 

states; and brought about the defeat of the Federal 
party and the inauguration of the Republican party, 
so-called it would seem in opposition to the imperial- 
istic tendencies of the Federal party, shown in the 
alien and sedition laws. 

But from the time of the ascendency of the Federal- 
ist party it may be observed how the Journal of Con- 
gress was changed, and took on the aspect preserved 
since. Direct communication between the United 
States and the several states' governments, which 
had filled the pages formerly, was at an end. The na- 
tional power having the control of the government, 
and the execution and administration of its own 
powers, avoided and ignored the several state gov- 
ernments as the latter had disregarded the resolu- 
tions of the old Congress. The several states were 
dealt with collectively, indirectly, preferably, or if 
they were dealt with directly as in case of direct 
taxes, these were laid and collected by authority of 
Congress directly from the inhabitants of the several 
states into the treasury of the United States, still 
ignoring the governments of the several states. This 
practice serves to explain the omission of a clause in 
the Pinckney draft, from the executive power of Con- 
gress by the Confederation, a clause conferring ex- 
press power on the president to correspond with the 
chief executives of the several states. 



OF THE POWER OF CONGRESS. 

Of the interpretation of the power of Congress it is 
most important to observe that the Constitution had 
conferred on Congress all the particular powers 
which at that period were required to provide for the 
common defense and general welfare; all then re- 
quired to apply the principle of general and local 
self-government; all vested in Congress by the Con- 
federation, and moreover for the general interests of 



( 216 ) 

the Union, and where the separate states were in- 
competent or their individual legislation might in- 
terrupt the harmony of the Union ; that is all the par- 
ticular powers required to conform to precedent con- 
stitutions, and for perfect union at that time. There- 
fore there was no occasion for the exercise of the gen- 
eral power of Congress and the interpretation that 
Congress had only enumerated and particular pow- 
ers was satisfactory for all practical purposes at that 
time. Yet two interpretations appeared, one that Con- 
gress had power to pay the debts and provide for the 
common defense and general welfare, the other that 
the power of Congress to lay and collect taxes, duties, 
imposts and excises was only for the purpose of, or in 
order to pay the debts and provide for the common 
defense and general welfare. Still another interpre- 
tation is mentioned, that the clause in question was 
a general power but intended as merely introductory 
to what followed, as if Congress should have power 
to pay the debts and provide for the common defense 
and general welfare, to wit: — the following particu- 
lar powers.^ These are all set out in Story on the 
Constitution^ wherein many opinions of members 
of the convention are cited that the first interpreta- 
tion is correct, among them that of Mr. Wilson in 
his Law Lectures;^ and it is recited that Mr, Jeffer- 
son claimed that the first interpretation was the 
opinion of the Federal party while the second was 
that of his own, the Republican party ; but it is con- 
cluded to adopt the second interpretation as that of 

1 Kent's Commentaries say: Congress are authorized to provide for the 
common defense and general welfare, and for that purpose, among other 
express grants, they are authorized to lay and collect taxes, duties, imposts and 
e^tcises; to borrow money, etc.; to regulate commerce, etc.; . . . and it is 
concluded that the powers of Congress are not disproportionate to the magnitude 
of the trust confided to the Union, and which the Union alone was competent 
to fulfill. (1 Kent's Com., 250, 251; star page 236, 237, 238.) 

2 Book 3. chap. 14; particularly sections 907, 908, 909, 912. 

3 It is stated that Mr. George Mason, one of the members of the convention 
inclined to the several states, admitted Congress to have general power to pro- 
vide for the common defense and general welfare, and said he wanted a clause 
enacted that all powers not granted are retained by the several states, or 



( 216 ) 

the generally received sense of the nation, and also 
for the reason that to adopt the first would render 
the succeeding i)articular powers unnecessary and 
superfluous. This reason is made by Mr. Madison in 
the Federalist,^ and while true in fact, it may be sub- 
mitted to be untrue in law; for it being of the essence 
of the compromise to frame the government for both 
interpretations — or else the composing one legisla- 
tive branch according to the federal plan and the 
other according to the national plan would be to no 
purpose — it contains both alternatives; and Mr. 
Madison merely advocated the one w^hich allayed the 
apprehensions of the several states, and which was 
sufficient for the period, and closed the door to any 
abuse of the power of Congress, but at the cost of the 
requirements of the future. Had the judiciary been 
feared by the several states as was the legislative, a 
similar interpretation applied to its power, inter- 
preting the power extending to all cases arising un- 
der the Constitution and laws as merely introductory 
to or declaratory of the succeeding particular pow- 
ers, might have restricted it also to its particular 
powers. But the judiciary had only recently been 
made independent of the legislative and executive by 
making their term of office during good behavior 
with fixed compensation undiminishable during 
their term, and there was no occasion for confining 
their jurisdiction; and the interpretation of judicial 
power extending to all cases in law and equity aris- 

the power for general welfare might be expanded and perverted to its des- 
truction. Such a clause appears among the recommendations for amendments 
to the Constitution made by the several states in their ratifications, and accord- 
ingly, in the Ninth Amendment providing that the enumeration of certain 
rights shall not be interpreted to deny or disparage others retained by the 
people, the enumeration would include the general power of Congress. Then , 
too, the enumeration may refer particularly to the powers prohibited to Con- 
gress; of which there is evidence. As to the apprehensions of the several 
states concerning the expansion and perversion of the general power of Con- 
gress, it may be observed, according to the leading authority heretofore quoted 
from, that the British Parliament cannot of constitutional right and poiuer but 
only by abuse thereof disregard the principle of local self-government; and 
the permanent ex stence of local self-government is a constitutional right always 
to be implied. (Cooley's Constitutional Law, pp, 175-76; 368.) 
1 No. 41, at the latter end. 



( 217 ) 

ing under the Constitiitiou and laws as general 
poAver, did render the succeeding particular powers 
unimportant and unnecessary. But other provisions 
of the Constitution became obsolete in practice, as 
for example the clause declaring how many members 
the several states should have in the liouse of repre- 
sentatives at first, and that validating the debts 
and engagements of the Confederation; that provid- 
ing the j)resident might be a citizen at the time of 
the adoption of the Constitution, as well as natur- 
al-born; all the ]3ro visions on slavery; and the 
clause on passing ^' every order, resolution, or vote '' 
was unimxiortant from the outset. Had Mr. Madison's 
apprehensions of the general government been greater 
he might have so read the first clause of the power of 
Congress as to have restrained taxation to what was 
incidental io the regulation of commerce in good 
faith, and so have divested the legislative of all 
power over the several states as effectually as the 
several colonies deprived the British government. 
But at that period Mr. Madison was not so strict a 
constructionist as he became later. 

The fact that the assertion that the Federal party 
believed in the general power of Congress was re- 
cited in Story on the Constitution to have been made 
not by that party but by the opposition, may evi- 
dence that the claim was not a popular or practica- 
ble one, which is sufficient to account for its not be- 
ing put forth more prominently by the Federal i^arty. 
The advanced stand of some members of that party 
may be to their credit with posterity, for whom ac- 
cording to the preamble the instrument was or- 
dained and established, as well as for the then pres- 
ent people of the United States: for Story on the Con- 
stitution is authority that the interpretation confin- 
ing Congress to particular powers was not merely 
that of the several states, but was the generally re- 
ceived sense of the nation of that day. In McCulloch 
V. jMaryland^ it was said by Chief Justice Marshall . 

1 4 Wheaton, U. S., pp. 316, 405. 



( 218 ) 

"This governmeiit is acknowledged by all to be one 
of ennmerated powers." This has been accepted 
ever since as authority that the government is one of 
enumerated and particular powers. And no doubt 
the government is one of enumerated powers, and 
also particular powers, the question being whether 
among those powers, in addition to the particular 
powers, there is not one general power to provide for 
the common defense and general welfare of the 
United States. 

DIRECT TAXES. 

Of the interpretation of direct taxes: March 20, '83 
the Journal of Congress by the Confederation shows 
a motion by Mr. Hamilton seconded by Mr. Wilson 
that the several states be advised to ' ratify laws 
for vesting in Congress authority to lay and 
collect the following: an import duty of five per 
cent., a duty on prizes of five per cent., a tax on lands 
at a stated rate, and a tax on houses; but the amount 
of the tax on lands and houses was to be credited to 
the several states wherein it should be assessed, 
while the duties were to be passed to the general 
credit of the United States. Here, observe, appears 
the division into taxes and duties which prevailed in 
England: the taxes are on lands and houses, the sub- 
jects of direct taxes in England, and are credited to 
the several states wherein collected, as to the several 
counties in England, thus being direct taxes on the 
several states, as on the several counties there; while 
duties are on imports and prizes, and pass to the gen- 
eral credit of the United States instead of to the sev- 
eral states, thus extending throughout the United 
States, all of which corresponds to the practice re- 
garding duties in England. 

Again July 13 in the convention a motion to raise 
all money for supplying the treasury of the United 
States by direct taxes, prior to the first census, from 



( 219 ) 

the several states, was passed in the affirmative, 
though a motion to raise the same by assessment on 
the inhabitants of the several states was lost; thus 
leaving it open to interpretation whether the laying 
and collecting of direct taxes prior to the first census 
should be by authority of Congress or the several 
states. 

In " the carriage-tax case," so-called,^ decided in 
1796, arising under act of June 5, 1794, which laid a 
duty extending throughout the United States on car- 
riages, the Supreme Court held the duty not objection- 
able to the Constitution because there was no appor- 
tionment, and speak of direct taxes as land-taxes, cap- 
itation taxes, poll-taxes, which, as observed, are the 
forms direct taxes to the component members have 
always taken, and which were, to large extent, famil- 
iar in the Confederation. It would appear here that 
expediency checked definition of direct taxes, the 
subject being too delicate for unnecessary perspicu- 
ity. The several states would have confined taxes 
throughout the Union to the particular forms al- 
ready dwelt on, duties on imports, excises, and per- 
haps stamp duties, though the latter had not been in 
exercise since 1765, in the Colonies, which would seem 
to account for taxes being so often divided into exter- 
nal and internal taxes, according to the customary 
forms. 

So with the acts of Congress for direct taxes. All 
the early acts, those of July 14, 1798, August 2, 1813, 
January 9, 1815, March 15, 1816, concurred in provid- 
ing that a "direct tax of" (stating the amount, as 
12,000,000 in the act of 1798) "be laid upon the 
United States and apportioned to the states respect- 
ively in the manner following:" New Hampshire so 
much, etc. The act of 1816 also included a direct tax 
on the District of Columbia. But these acts differ: 
that of 179S being in President Washington's admin- 
istration, follows the view of perfect union, while 

1 Hylton V. The United States, 3 Dallas, p. 171. 



( 220 ) 

those later in President Madison's administration, 
follow the several states' governments; the act of 
1798 providing for assessing the quotas of the states 
on dwelling houses, lands and slaves, according to 
their valuation, and for collection by internal reve- 
nue collectors of the United States, each state being 
debited with its quota and credited on collection 
coming in. Here Congress lays the amount on the 
United States and apportions it to the several states, 
administering the quotas to their inhabitants upon 
the subject matter usual in such taxes. But the act of 
1813 instead of proceeding to administer the taxes by 
assessing and collecting the quotas " payable by the 
j^tates " — as the act says — reapportions the quotas 
on the counties and districts of the states, and fur- 
ther provides that the state legislatures may vary 
the quotas of the counties to suit themselves. Here 
the administration of the taxes to the inhabitants is 
left to the several states, and the word 'direct" not 
applying to the administration the states might have 
claimed that Congress had power only to direct and 
appoint the tax, as in the Confederation, and that 
quotas were but voluntary contributions of the 
states to the Union. 

The language of the debates in the constitutional 
convention and in the state conventions ratifying the 
constitution, bears this out, all speaking of direct 
taxes as land-taxes, capitation-taxes, j)oll-taxes, some 
or all of these. So with the amendments proposed to 
the Constitution by the several states, Massachusetts, 
South Carolina, New Hampshire, New York, Rhode 
Island, that requisitions should precede the laying 
and collecting of direct taxes, that is that the United 
States should collect only in non-complying states, ac- 
cording to the Jersey plan. 

Everj^thing on direct taxes seems to bear this out 
until we come to the '' income tax cases " so-called,^ 
arising under the act of Congress of August 15, 1894, 

1 Pollock V. The Farmers' Loan and Trust Co., 157 U. S, 429; 158 U. S., 601, 



{ 221 ) 

which laid taxes or duties extending throughout the 
United States on certain incomes. Here the Supreme 
Court held direct taxes to include taxes on real and 
personal property and incomes therefrom, and that 
the income tax was unconstitutional because not ap- 
portioned among the states according to numbers, 
and the court interpreted the direct taxes clause 
thus ■} speaking of taxes on real and personal prop- 
erty and incomes the Court say: "Being direct, 
therefore, and to be laid by apportionment, is there 
any real difflculty in so doing? Cannot Congress, if 
the necessity exist of raising thirty or forty or any 
other number of million dollars for the support of 
the government in addition to the revenue from 
duties, imi^osts and excises, apportion the quota of 
each state upon the basis of the census, and thus ad- 
vise it of the payment which must be made and pro- 
ceed to assess that amount on all the real and per- 
sonal property and the incomes of all persons in the 
state, and collect the same if the state does not, in 
the meantime, assume to pay its quota and collect 
the amount according to its own system and in its 
own way? Cannot Congress do this as respects either 
or all of these subjects of taxation, and deal with 
each in such a manner as may be deemed expedient, 
as, indeed, was done in the Act of July 14, 1798? ^ 

Here the Court interpreted the matter so as to 
make it turn on the rule or measure of quotas rather 
than on the right to quotas; and say the j)urpose of 
the clause was to limit direct taxes to numbers in or- 
der to "i)revent an attack on accumulated wealth by 
mere force of numbers."^ But the rule of numbers 
came from the old Continental Congress, from the 
old Articles of Confederation of the United Colonies 
of New England, where it included all slaves. It was 

1 Page 632, 2d Opinion. 

2 The Act here referred to is probably the Act of August 2, 1813, as the Act 
of July 14, 1798, proceeded to assess and collect the quotas at once without 
waiting for the states to assume quotas and assess and collect themselves. 

3 Page 583, 1st Opinion. 



( 222 ) 

only relinquished in the Confederation and Perpet- 
ual Union in favor of the rule of values of the land 
because of inability to compromise on the inclusion 
of slaves, and the rule of values being so easily 
evaded by the several states the rule of numbers was 
restored by the resolutions of April 18, '83, unani- 
mously, because it could not be evaded and was en- 
forceable in practice; agreement being reached on 
the inclusion of three-fifths of the slaves. The great 
question was not on the measure of quotas, but on 
the right to quotas, whether they were voluntary 
contributions from the several states or not, and 
though by the constitutional law and theory of the 
Confederation the several states were obliged to con- 
tribute, yet the law of the Confederation could not 
be enforced; and quotas could not be obtained until 
power to administer quotas to the inhabitants of the 
states was conferred, along with power to administer 
all the powers of the old Congress to the inhabitants 
of the states, by the constitutional convention. 

Moreover, as direct taxes are to be apportioned 
among the states according to numbers, they cannot 
be such as are inherently incapable of being appor- 
tioned. But only gross sums can be apportioned. 
Such were the taxes in all the acts for direct taxation 
and in the case supposed by the Court in the quota- 
tion above. A tax described as a tax extending one 
and undivided throughout the Union and laid on 
X^roperty and incomes, being a percentage of the 
value thereof, cannot be apportioned among the states 
without losing its quality of unity throughout the 
Union in being apportioned ; and moreover losing its 
relation to property and incomes; because quotas 
are single sums which can be charged nowhere but 
on single bodies, as the states, and are gross sums 
that can have no relation to property or incomes un- 
til tliey are assessed and thus distributed on the 
property or incomes within the states; which latter 
function of assessment the Court implied the states 



( 223 ) 

have tlie right to in the first instance, the right of 
Congress being only to assess and collect in non- 
complying states, as in the Jersey plan. A fortiori 
it is true that no taxes on property or incomes can 
be apportioned according to numbers, for such taxes 
can be measured only by the standard of values 
which is a wholly different standard from numbers; 
only quotas considered as sums in gross can be 
measured according to numbers. The Court would 
change the whole nature of the tax in order to ap- 
portion it among the states according to numbers, 
and thus would make it over into what is, properly 
speaking, a direct tax — that is, as they say, "the 
quota of each state." The Court really deny to Con- 
gress power to lay taxes throughout the United 
States on real or personal property or incomes; and, 
according to some language, they would seem — 
adopting the economic or commercial definition of di- 
rect taxes — to deny iDower to lay any but duties on 
consumption, duties on imports and excises, and per- 
haps stamp duties (and j)erhaps stamp duties should 
be limited to stamps on legal papers, for such only 
were they in colonial days ) ; so the Court would limit 
Congress as did the Jersey plan; yet not on account 
of the states, but for wholly different reasons. 

But it may be submitted that the object of taxa- 
tion was always the political bodies, the members of 
the ITnion, and the matter of taxes was always a po- 
litical matter, there being no consideration of eco- 
nomic or commercial matters, save as incidental to 
political ends; nor is there any consideration of natu- 
ral iJersons as objects of taxation. There is no con- 
sideration of wealth, except slaves, which are not 
denominated wealth but are called '^persons of the 
other description," looking forward to the period of 
the removal of the restriction on the prohibiton of 
their importation; and slaves were considered in 
both rei^resentatives and direct taxes only as means 
to the direct objects, the several states, and as the 



( 224 ) 

measure of their contribntions. The error would 
seem to lay in ignoring that the convention conferred 
on Congress the power vested in Congress by the 
Confederation to require quotas from the several 
states, and added power to lay and collect the same 
from the inhabitants. 

THE LIMITS OF THE UNION. 

Prior to 1823 it would appear there was no occa- 
sion for the United States to brave Europe with pro- 
claiming the limits of the United States, otherwise 
than as set forth; President Washington had issued 
his farewell warning against entangling alliances, to 
preserve America for Americans ; but in that year the 
colonies of Spain in south America being in revolt 
and apprehension having been aroused of the inter- 
ference of the allied powers of Europe, the Holy Alli- 
ance, President Monroe announced the Monroe doc- 
trine, so-called, that ''as it was impossible for the 
Powers to extend their system to any part of Amer- 
ica without endangering our peace and happiness we 
should not behold such interference with indiffer- 
ence"; and that "it was a principle that the Ameri- 
can continents were henceforth not to be considered 
as subjects for future colonization by any European 
power," This doctrine apjoears more explicable on 
the ground that the colonies referred to were within 
the limits of the United States than merely out of 
political sympathy with an alien race so remote, and 
while the people of the United States were so few in 
number — some 10,000,000. The doctrine was imme- 
diately popularized into "America for Americans." 
The executive has maintained it since, and the 
Venezuela message of President Cleveland an- 
nounced that this government was practically sov- 
ereign on the western continent, thus carrying 
into execution the constitutional sovereignty originat- 
ing with the Declaration of Independence. By the 



( 225 ) 

Constitution all tlie words of tlie name "the United 
States of America" are of equal import, yet in cur- 
rent conception the latter words have been neglected 
or used with little meaning, as if importing only the 
address of the United States, as if it were the United 
States located in America. The cause of the shrink- 
age of conception would appear to lay, as in the case 
of the power of Congress and also the meaning of 
direct taxes, in considering only what was practical 
at the time, m compromising with the several states 
so far as practicable; and the latter would preferably 
confine the Union to territory whereover the several 
states might be supreme, for otherwise it was ques- 
tionable to whom among the several states should 
outlying territory ultimately belong.^ 2 

OP THE POWER OP INTERPEETATION. 

The inauguration of President Jefferson meant the 
ascendency of the states' rights party or school, the 
party of the federal plan in the convention, in the 
executive, and the Federalist political party being also 
out of power in Congress, the judiciary was resorted 
to to maintain the supremacy of the United States. 
it has always been recognized that President Adams 
intended by the appointment of Chief Justice Mar- 
shall to perpetuate the national supremacy and prin- 
ciples, and it is stated in the history of the Supreme 
V.ourt of the United States^ that Chief Justice Mar- 
shall and President Jefferson stood face to face as 
John Doe v. Eichard Roe in the case of Marbury v. 
Madison.4 -^ 

1 This was the controversy in the case of the old Northwest Territory 

States ZZfl^.TS'"° ^"^ ''"''^ ^'""^'^ ""' ^^^^^^" '''' limitsof the United 
States. So may be the Hawaiian Islands, .ince a main reason for annexation 
was their strategical necessity as an outpost for our shore-line, which reasonTs 

3 Carson's History of the Supreme Court of the United States. 
_ 4 When Mr. Madison, secretary of state, refused to deliver to Marburv 
justice ot the peace, in the District of Columbia, his commission, after he had 
been appointed by President Adams, confirmed by the senate, and his com- 
mission signed and sealed during the Adams's administration, the supreTe 



( 226 ) 

By that case the conclusive supremacy of the 
United States over the several states, which could 
not be maintained by the Confederation and Union 
for lack of pov^er to administer and execute the 
power of Congress, was instituted and begun. It 
was begun by the judiciary, and on the authority of 
that case was the reliance of the advocates of the na- 
tional supremacy and principles placed. Here, it may 
be repeated, was the beginning of the administra- 
tion of the supremacy of the United States over 
the several states, which constitutionally had ob- 
tained from the Confederation article obligating 
the several states to abide by the determinations 
of the United States in Congress. It was accom- 
plished b}' the judiciary declaring themselves to 
have the right to interpret the Constitution con- 
clusively. By Marbury v. Madison the interjjre- 
tation of the Constitution by Congress so as to con- 
fer on the judiciary original power to issue the writ 
of mandamus to Mr. Madison was denied and over- 
ruled, and though this decision relieved the judiciary 
from issuing the writ and thus offering an issue to 
the President, jet to decide that to the judiciary be- 
longed the interpretation of the Constitution was in 
effect to decide that it did not belong to the legisla- 
tive or to the executive in any conclusive sense. 
Thereafter, by the authority of that case, neither the 
legislative nor the executive could conclusively in- 
terpret the Constitution; and during the time of 
Chief Justice Marshall the judicial interpreta- 
tion was for the supremacy of the United States over 

court was moved for a rule of mandamus to Mr. Madison to deliver the same, 
and denying the motion the court put their decision on the ground that they 
had no original jurisdiction in such a case, notwithstanding it was con- 
ferred on them by act of Congress, because original jurisdiction in such a case 
was not conferred on the court by the Constitution. Refusing to accept from 
Congress power to issue the writ, by denying the power of Congress to confer 
on them the power to.do so, collision which was pending with the first adminis- 
tration of the states' rights party, under President Jefferson, was avoided, by 
determining that to the judiciary rather than to the legislative or executive 
belonged the interpretation and construction of the Constitution; and, as 
Story on the Constitution says, the national sense acquiesced Marbury v. Mad- 
ison, 5 U. S. ; 1 Cranch, 137. 



( 227 ) 

the several states and was the reliance of the na- 
tional party.^ In the time of Chief Justice Taney it 
was otherwise, but so thoroughly were the national 
principles committed to the judiciary in the time of 
Marshall that the conclusive interpretation of the 
judiciary was not shaken by the inclination of the 
judiciary to the federal theory of the constitutional 
convention, in the time of Taney. Yet if the right 
of the judiciary conclusively to interpret the Consti- 
tution should come to conflict with the maintenance 
of the supremacy of the United States over the sev- 
eral states^ then if the supremacy of the United 
States could not he icithheld the right of the judi- 
ciary conclusively to interpret the Constitution 7nust 
give ivay. This was the issue presented by the seces- 
sion of South Carolina. 

South Carolina passed the act of secession from the 
Union in convention of the people thereof, convened 
December 17, '60, pursuant to call of the general as- 
sembly of the state. The act was entitled " An act to 
dissolve the Union between the State of South Caro- 
lina and other states united with her under the com- 
pact entitled * the Constitution of the United States of 
America,' " and declared that the ordinance ratifying 
the Constitution and all acts or parts of acts of the 
general assembly ratifying amendments to it were 
repealed, and that the Union subsisting between 
South Carolina and other states under the name of 
the United States of America was thereby dissolved.^ 

Here was an act of a state which must be nega- 
tived by the United States, by an interpretation of 
the Constitution contradicting it, which being the 

1 While the National party relied on the judiciary it naturally sought to 
extend their jurisdiction. If Congress had only particular powers the judiciary 
had a more extended jurisdiction than if Congress had general power. There- 
fore the National party was led to acquiesce in Congress having only particular 
powers. Such interpretation of the Constitution strengthened the National 
power by meansof the judiciary. 

2 South Ca olina only ratified the government of the Union made by the 
Union. She became a s' ate by authority of the Union by the Declaration of 
Independence, and by authority and direction of Congress established her first 
constitution for internal government and police. It appears that she never 
existed but by and for the Union as well as herself. 



( 228 ) 

supreme law of the land would by necessary conse- 
quence render it null and void. Until that was done 
no coercion by force of arms could be exercised 
within the state of South Carolina, or such coercion 
would be against a state and its authority, power 
wherefor the constitutional convention postponed 
after adopting the negative on state laws in order to 
avoid it, and never conferred. When that was done 
no law of South Carolina would confront the United 
States and the laws of the United States could be 
executed within the state of South Carolina, pursu- 
ant to the Constitution, with force of arms. But ac- 
cording to Marbury v. Madison, and the judicial pre- 
cedents for sixty years, in order to be conclusive the 
negative must be exercised by the judiciary. But 
that would require among other things delay, and it 
was as imperative that the negative be at once as 
that it be at all. It should be exercised as promptly 
as the South Carolina convention enacted the law. 
But the judiciary could exercise it only upon a case 
arising at law or in equity and conducted to judg- 
ment, and execution issued, which w^ould of necessity 
occasion delay. Moreover w^hat form of action at law 
or suit in equity could be brought to interpret the 
Constitution of the United States to negative the act 
of the state? An action might perhaps be brought 
Avherein the Constitution would be so interpreted, 
but what action for that purpose? Who should 
bring it? In South Carolina federal officers all re- 
signed, actuated perhaps by the official opinion of 
the attorney-general of President Buchanan that the 
federal government could not act against a State ex- 
cept with an execution upon a judgment rendered 
in an action at law or suit in equity by the judiciary. 
South Carolina assumed possession of the United 
States custom-house. All the difficulty, delay, cir- 
cuity, inconclusiveness, the inadequacy of any remedy 
at law or in equity, the inefficiency and inappropri- 



( 229 ) 

ateness of the judiciary to the constitutional issue 
w^ere present. Moreover the judiciary just then held 
that the constitutional obligations of the several 
states were only moral obligations. March 14, '61, 
after the act of secession of South Carolina, but 
prior to its execution by the firing on Fort Sumter, 
the Supreme Court of the United States decided the 
ex parte Matter of the Commonwealth of Kentucky 
by its governor, petitioner, vs. the governor of Ohio.^ 
It was an application for a mandamus to the govern- 
or of Ohio to cause a fugitive from justice, convicted 
in Kentucky for enticing away a slave and fleeing to 
Ohio, to be delivered up for removal to Kentucky; 
and the Supreme Court in an opinion by Chief Justice 
Taney declared the governor of Ohio to be in duty 
bound to deliver up the fugitive to be removed to 
Kentucky, but further declared his duty to be not 
mandatory or compulsory but merely declarative of 
the moral duty of the compact, the Constitution. As 
its members were then, the supreme court might 
have let the Union be dissolved. President Buchanan 
had taken similar position in a late message to Con- 
gress. That President Lincoln feared the judiciary 
is evident from his inaugural address wherein he 
argued to restrict the binding authority of the opin- 
ions and decisions of the supreme court on the exec- 
utive to the close limits of res adjudicata, that being 
no doubt all it was expedient for him to avow, in 
view of the practice of the government. Therefore 
judicial interpretation to negative the act of South 
Carolina and authorize the execution of the laws of 
the United States by force of arms within South Car- 
olina was impracticable by reason of the mode of 
operation of the judiciary, lacking initiative and 
promptitude and certainty, and by its latest decision. 
Of the legislative and executive, both having been 
denied the conclusive interpretation of the Consti- 

1 65 U. H., 24 How., pp. 66-110. 



( 230 ) 

tution, perhaps either could, exercise it to negative 
the act of South Carolina, as well as the other, at 
this time; and the South had threatened to secede if 
Mr. Lincoln was elected, thus perhaps assuming the 
election of the executive to decide the issue of pre- 
eminence in the government. If the President inter- 
preted the Constitution to negative the act of South 
Carolina his interpretation was either conclusive or 
it was not. If not, if it was reversible by the judiciary, 
he might be in violation of the laws of the United 
States in the use of coercion by force of arms 
and liable to impeachment and. punishment according 
to law. But not to exercise coercion by force of 
arms would permit and allow secession and the dis- 
solution of the Union, which in the opinion of the ex- 
ecutive was unconstitutional. President Lincoln 
chose to exercise the negative on the act of South 
Carolina himself, by the executive, and interpreting 
the Constitution so as to contradict the act of seces- 
sion and thus render it null and void, he called for 
troops to sujipress an insurrection within the state of 
South Carolina and other states. Here his act was 
either conclusive of the interpretation of the Con- 
stitution or it was not. If it was not, but was revers- 
ible by the judiciary then the Union could not be 
preserved pursuant to the Constitution because force 
of arms was constitutionally postponed to the writ 
of execution upon a judgment rendered in an action 
at law or suit in equity by the judiciary interpreting 
the Constitution to negative the act of South Caro- 
lina;^ and President Lincoln was liable to impeach- 
ment and further punishment. If conclusive, the ex- 
ecutive had the right conclusively to interpret the 
Constitution to negative acts of secession.^ But such 
power belonging to the executive What became of the 

1 In accordance with the opinion of President Buchanan's attorney-general, 
whereon was based his message lo Congress. 

'^ As the British executive exercised the negative on the several colonies 
directly. 



( 231 ) 

uuthorify of the judiciary conclusively to interpret 
the Constitution f^ 

The supremacy of tlie United States inhering 
in the Declaration of Independence and expressed 
in the Confederation and Union by the article 
obligating the several states to abide by the de- 
terminations of Congress was begun as matter of 
administration by the judiciary by Chief Justice 
Marshall, and as matter of execution consummated 
by the executive by President Lincoln, it would ap- 
pear ; and the national sense acquiesced in both cases. 
To President Lincoln the issue of supremacy pre- 
sented was official, direct, immediate and certain; to 
Chief Justice Marshall it would appear at this day to 
have been none of these. By as much as to the execu- 
tiA^e the greater issue was offered, its decision would 
appear to be the greater precedent. The judiciary and 
executive were established to administer and execute 
the power of Congress by the Confederation, that be- 
ing the chief work of the constitutional convention ; 
and the judiciary began and the executive completed 
the work, each assuming for the purpose conclusively 
to interpret the constitution." Thus was accomplished 
the motive leading to their institution. The next 
work of the constitutional convention would appear 
to have been, according to the national plan, to enlarge 
or interpret the power of Congress by the Confedera 
tion to power to provide for the common defense and 
general w elfare of the United States. For this pur- 
pose power conclusively to interpret the Constitu- 

1 All the Taiographers of Mr. Lincoln, while disputing over his technical 
qualifications as a lawyer, speak of the extraordinary strength and length of 
his reasoning power as exhibited at the bar, of his independence in its exercise, 
and of his absorbed and abiding interest in political questions, which meant 
constitutional questions during the period preceding the war. The result of his 
reasoning appears only when, having argued against the judiciary instead of for 
them, as his predecessor had done, the Chief Executive became the chief ex- 
pounder of the Constitution. 

2 It should be noted distinctly that it was to establish the supremacy of the 
United States rather than to control other departments of the government 
thereof that the judiciary and the executive assumed conclusively to interpret 
the Constitution. 



( 232 

tion to provide for the common defense and general 
loelfare would in the nature of things belong to Con- 
gress, as hj the Confederation ?■ 

' An examinalion of Madison v. Marbury would appear to show- 
that all the objections to the conclusive interpretation of the Consti- 
tution by the legislative apply also to conclusive interpretation by 
the judiciary, both being upon oath. The argument that legislative 
interpretation repugnant to the Constitution is void, applies equally 
to render judicial interpretation contrary to the Constitution void. 
The Confederation and Union, the several state constitutions and the 
several colonial charters, and the many great charters of England 
yfereaW written constitutions. Montesquieu had said, "Of the three 
powers above mentioned, the judiciary is in some manner next to 
nothing; there remains therefore only two." Since then their term 
had been made during good behavior with fixed compensation, to 
render them independent of the legislative and executive, but it 
would not follow that they were to have the conclusive interpretation 
of the Constitution, save for the supremacy of the United States over 
the several states, although it enabled them to assume it. It might 
mean that Congress was no longer to entertain appeals of cases from 
the judiciary. The trial of impeachments was denied to the judiciary, 
which according to Blackstone was the highest judicial power.^ No 
doubt some of the members of the convention believed in the right 
of the judiciary to overrule the legislative interpretation, to the 
extent of the few cases which had then arisen. (See Carson's History 
of the Supreme Court of the United States.) To others the doctrine 
was not new, for when mentioned one member said, opposing it, 
"The justiciary of Arragon became by degrees the law-giver." The 
convention made no provision concerning the number of members of 
the Suprenje Court or for contesting therein the supremacy of the 
United States. The functions of the legislative had always been the 
enactment of new law and the declaration of old law, and it would 
appear the judiciary assumed the latter function for constitutional 
purposes for the supremacy of the Union. The principle that adopted 
laws are adopted with the construction put on them was affirmed by 
Marshall, C. J., later, and no reason appears for its not applying to 
the supremacy clause of the Constitution, drawn from the interpre- 
tation of the Confederation by Congress. 

2 Judicial power to try impeachments was given by tlie Virginia plan, the 
resolutions of the Gommittee of the whole, and the Jersey plan, but was 
striken out by the convention in convention unanimously. It appeared in the 
rough draft of the Constitution from the Pinckney draft, was postponed by the 
convention August 27th, then with all the postponed parts of the Constitution, 
was referred to a committee of one member from each state, August 31st; 
September 4th that committee reported a clause '■ That the Senate of the United 
Stat> s shall try all impeachments, but no person shall be convicted without 
concurrence of two-thirds of the members present." which ■ lause was post- 
poned, but taken up September 8th, and passed in following form: "Tlie 
Senate of the United States shall have power to try all impeachments, but no 
person shall be convicted without concurrence of two-thirds of the members 
present; and every member shall be on oath." That the Chief Justice should 
preside was inserted by committee of revision of style and arrangement. 



IN CONCLUSION. 

Thus it would appear that according to the nation- 
al interpretation the Constitution confers on Con- 
gress power to provide for the common defense and 
general welfare of the United States, and therefor 
power to lay and collect taxes directly from the sev- 
eral states, and duties extending throughout the 
United States, which are indirect taxes to the several 
states; and that the limits of the United States are 
the bounds of America; which interpretation the na- 
tion may accept and dictate in the future as the sev- 
eral states dictated their interpretation in the past. 

By holding in the Income Tax cases that there has 
been a " Century of Error " the Supreme Court would 
appear to have opened the way to such interpretation. 

To a British statesman has been attributed the 
saying that "As the British constitution is the most 
subtile organism which has proceeded from progres- 
sive history, so the American constitution is the 
most wonderful work ever struck off at a given time 
by the brain and purpose of man." But it may be 
submitted that the American Constitution instead of 
being struck off at a given time was drawn from the 
British constitution and from the first American con- 
stitution in substance and in form, and however the 
British constitution may preserve the equilibrium of 
the governments of Great Britain, the Constitution 
of the United States of America was designed to pre- 
serve the great principle of self-government general 
and local, joint and several, for the people of America.- 

1 It may be observed that Mr. Madison, publishing his Journal of Debates, 
and Mr. Yates, publishing his Minutes, were not friendly to the national cause, 
and the same is true of Luther Martin's Letter and the David Brearly papers. 
None of the private accounts of the proceedings of the convention appears to 
have been written by a friend of the national cause. Moreover one of the stand- 
ing rules of the convention was that nothing spoken in the House be published 
or communicated without leave, which injunction of secrecy, it is stated, was 
never afterward revoked and was faithfully observed by the members of the 
convention. Wherefore the Journal, Acts and Proceedings are not only the best 
evidence, but perhaps the sole evidence for the national cause, of what took 
place in the convention. 



THE CONSTITUTION. 

We^ the people of the United States in order to form a more 
perfect union, establish justice, ensure domestic tranquillity , 
provide for the common defence, promote the general welfare 
and secure the blessings of liberty to ourselves and our pos- 
terity, do ordain and establish this Constitution for the 
United States of [co-equal with] America. 

ARTICLE I. 

SECTION I. 

All legislative powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Sen- 
ate and House of Representatives. 

SECTION II. 

The House of Representatives shall be composed of members 
chosen every second year by the people of the several States, 
and the electors in each State shall have the qualifications 
requisite for electors of the most numerous branch of the State 
Legislature. 

No person shall be a Representative who shall not have at- 
tained to the age of twenty-five years, and been seven years 
a citizen of the United States, and who shall not, when 
elected, be an inhabitant of that State in which he shall be 
chosen. 

Representatives [from the several States] and di- 
rect taxes [to the several States] shall be appor- 
tioned among the several States which may be included 
within this Union, according to their respective numbers, 
which shall be determined by adding to the whole number 
of free persons, including those bound to service for a term 
of years, and excluding Indians not taxed, three-fifths of all 
other persons. The actual enumeration shall be made within 
three years after the first meeting of the Congress of the 
United States, and within every subsequent term of ten years, 
in such manner as they shall by law direct. The number of 
Representatives shall not exceed one for every thirty thou- 
sand, but each State shall have at least one Representative; 
and until such enumeration shall be made, the State of New 

1 This copy of the Constitution is from EUiot's Debates, (J. B. Lippincott 
Edition, 1896,) which states that its copy is "copied and carefully compared with 
the original in the Department of State. Punctuation, paragraphs, and capital 
letters, same as said original." The words in brackets and black letter type are 
interpolated by the writer for interpretation. 



( 235 ) 

Hampshire shall be entitled to choose three, Massachusetts 
eight, Ehode Island and Providence Plantations one, Connecti- 
cut five, New York six. New Jersey four, Pennsylvania eight, 
Delaware one, Maryland six, Virginia ten, North Carolina 
five, South Carolina five, and Georgia three. 

When vacancies happen in the representation from any 
State, the Executive authority thereof shall issue writs of 
election to fill such vacancies. 

The House of Eepresentatives shall choose their Speaker 
and other officers ; and shall have the sole power of impeach- 
ment. 

SECTION III. 

The Senate of the United States shall be composed of two 
Senators from each State, chosen by the Legislature thereof, 
for six years; and each Senator shall have one vote. 

Immediately after they shall be assembled in consequence 
of the first election, they shall be divided as equally as may 
be, into three classes. The seats of the Senators of the first 
class shall be vacated at the expiration of the second year, 
of the second class at the expiration of the fourth year, and 
of the third class at the expiration of the sixth year, so that 
one third may be chosen every second year; and if vacancies 
happen by resignation or otherwise, during the recess of the 
Legislature of any State, the executive thereof may make 
temporary appointments, until the next meeting of the Legis- 
lature, which shall then fill such vacancies. 

No person shall be a Senator who shall not have attained 
to the age of thirty years, and been nine years a citizen of the 
United States, and who shall not, when elected, be an inhabi- 
tant of that State for which he shall be chosen. 

The Vice President of the United States shall be President 
of the Senate, but shall have no vote unless they be equally 
divided. 

The Senate shall choose their other officers, and also a 
President pro-tempore, in the absence of the Vice President 
or when he shall exercise the office of President of the United 
States. 

The Senate shall have sole power to try all impeachments : 
when sitting for that purpose, they shall be on oath or affirma- 
tion. When the President of the United States is tried the 
Chief Justice shall preside : and no person shall be convicted 
without the concurrence of two thirds of the members present. 

Judgment in cases of impeachment shall not extend farther 
than to removal from office, and disqualification to hold and 
enjoy any office of honor, trust, or profit under the United 
States : but the party convicted shall nevertheless be liable 
and subject to indictment, trial, judgment and punishment, 
according to law. 



( 236 ) 

SECTION IV. 

The times, places and manner of holding elections for Sena- 
tors and Representatives, shall be prescribed in each State by 
the legislature thereof; but the Congress may at any time by 
law make or alter such regulations, except as to the places of 
choosing Senators. 

The Congress shall assemble at least once in every year, 
and such meeting shall be on the first Monday in December 
unless they shall by law appoint a different day. 

SECTION V. 

Each House shall be the judge of the elections, returns and 
qualifications of its own members, and a majority of each 
shall constitute a quorum to do business ; but a smaller num- 
ber may adjourn from day to day, and may be authorized to 
compel the attendance of absent members, in such manner, 
and under such penalties as each house may provide. 

Each House may determine the rules of its proceedings, 
punish its members for disorderly behavior, and, with the 
concurrence of two thirds, expel a member. 

Each House shall keep a journal of its proceedings, and 
from time to time publish the same, excepting such parts as 
may in their judgment require secrecy; and the yeas and 
nays of the members of either House on any question shall, 
at the desire of one-fifth of those present, be entered on the 
journal. 

Neither House, during the Session of Congress, shall, with- 
out the consent of the other, adjourn for more than three days, 
nor to any other place than that in which the two Houses 
shall be sitting. 

SECTION VI. 

The Senators and Representatives shall receive a compensa- 
tion for their services, to be ascertained by law, and paid out 
of the Treasury of the United States. They shall in all cases 
except treason, felony and breach of the peace, bo privileged 
from arrest during their attendance at the session of their 
respective Houses, and in going to and returning from the 
same; and for any speech or debate in either House, they 
shall not be questioned in any other place. 

No Senator or Representative shall, during the time for 
which he was elected, be appointed to any civil oflQce under 
the authority of the United States, which shall have been 
created, or the emoluments whereof shall have been increased 
during such time : and no person holding any office under 
the United States shall be a member of either House during 
his continuance in office. 



( 237 ) 

SECTION VII. 

^ All bills for raising revenue shall originate in the House cf 
J Representatives ; but the Senate may propose, or concur with, 
amendments, as on other bills. 

Every bill which shall have passed the House of Eepresen- 
tatives, and the Senate, shall, before it become a law, be pre- 
sented to the President of the United States; if he approve 
he shall sign it, but if not he shall return it, with his objec- 
tions to that House in which it shall have originated, who 
shall enter the objections at large on their journal, and pro- 
ceed to reconsider it. If after such reconsideration two-thirds 
of that House shall agree to pass the bill, it shall be sent, to- 
gether with the ohjections, to the other House, by which it 
shall likewise De reconsidered, and if approved by two thirdr. 
of that House, it shall become a law. But in all such cases 
the votes of both Houses shall be determined by yeas and nays, 
and the names of the persons voting for and against the bill 
shall be entered on the journal of each House respectively. If 
any bill shall not be returned by the President within ten 
days (Sundays excepted,) after it shall have been presented to 
him, the same shall be a law, in like manner as if he had 
signed it, unless the Congress by their adjournment prevent 
its return, in which case it shall not be a law. 

Every order, resolution, or vote to which the concurrence 
of the Senate and House of Eepresentatives may be necessary 
(except on a question of adjournment) shall be presented 
to the President of the United States; and before the same 
shall take eflPect, shall be approved by him, or, being disap- 
proved by him, shall be repassed by two-thirds of the Senate 
and House of Eepresentatives, according to the rules and 
limitations prescribed in the case of a bill. 

sectio:n^ VIII. 

The Congress shall have power To lay and 
collect taxes, duties, imposts, and excises, 
[power] to pay the debts and [power to] pro- 
vide for the common defence and g-eneral 
welfare of the United States ; but all duties, 
imposts and excises [being indirect taxes to 
the several States] shall be uniform through- 
out the United States;^ 

1 In the edition of 1819 the clause "to paj' the debts" etc., is a separate para- 
graph beginning with a capital "T," thus: The Congress shall have power to 
lay and collect taxes, duties, imposts, and excises; 

To pay the debts and provide for the common defence and general welfare 
of the United States; but all duties, mposts, and excises shall be uniform 
ithroughout the United States. 



( 23S ) 

To borrow money on the credit of the United States, 

To regulate commerce with foreign nations, and among 
the several States, and with the Indian tribes ; 

To establish an uniform rule of naturalization, and uni- 
form laws on the subject of bankruptcies throughout the 
United States; 

To coin money, regulate the value thereof, and of foreign 
coin, and fix the standard of weights and measures ; 

To provide for the punishment of counterfeiting the securi- 
ties and current coin of the United States; 

To establish post offices and post roads; 

To promote the progress of science and useful arts, by 
securing for limited times to authors and inventors the ex- 
clusive right to their respective writings and discoveries ; 

To constitute tribunals inferior to the supreme court ; 

To define and punish piracies and felonies committed on 
the high seas and offences against the law of nations ; 

To declare war, grant letters of marque and reprisal, and 
make rules concerning captures on land and water; 

To raise and support armies, but no appropriation of money 
to that use shall be for a longer term than two years ; 

To provide and maintain a navy; 

To make rules for the government and regulation of the 
land and naval forces; 

To provide for calling forth the militia to execute the 
laws of the Union, suppress insurrections and repel invasions ; 

To provide for organizing, arming and disciplining, the 
militia, and for governing such part of them as may be em- 
ployed in the service of the United States, reserving to the 
States respectively, the appointment of the officers, and the 
authority of training the militia according to the discipline 
prescribed by Congress ; 

To exercise exclusive legislation in all cases whatsoever over 
such district (not exceeding ten miles square) as may, by ces- 
sion of particular States, and the acceptance of Congress, be- 
come the seat of the government of the United States, and to 
exercise like authority over all places purchased by the eon- 
sent of the Legislature of the State in which the same shall 
be, for the erection of forts, magazines, arsenals, dock-yards, 
and other needful buildings; — And 

To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other 
powers vested by this constitution in the government of the 
United States, or in any department or officer thereof. 

SECTION IX. 

The migration or importation of such persons as any of 
the States now existing shall think proper to admit, shall not 



( 239 ) 

be prohibited by the Congress prior to the year eighteen hun- 
dred and eight, but a tax or duty may be imposed on such im- 
portation, not exceeding ten dollars for each person. 

The privilege of the writ of Habeas Corpus shall not be sus- 
pended, unless when in cases of rebellion or invasion the 
public safety may require it. 

No bill of attainder or ex post facto law shall be passed. 

No capitation, or other direct, tax shall be laid, unless in 
proportion to the census or enumeration herein before direct- 
ed to be taken. 

No tax or duty shall be laid on articles exported from any 
State. 

No preference shall be given by any regulation of com- 
merce or revenue to the ports of one State over those of 
another: nor shall vessels bound to, or from, one State, be 
obliged to enter, clear, or pay duties in another. 

No money shall be drawn from the Treasury, but in con- 
sequence of appropriations made by law ; and a regular state- 
ment and account of the receipts and expenditures of all 
public money shall be published from time to time. 

No title of nobility shall be granted by the United States, 
and no person holding any office of profit or trust under them, 
shall, without the consent of the Congress, accept of any pres- 
ent, emolument, office, or title, of any kind whatever, from 
any king, prince, or foreign State. 

SECTION X. 

No State shall enter into any treaty, alliance, or confeder- 
ation; grant letters of marque and reprisal; coin money; 
emit bills of credit; make anything but gold and silver coin 
a tender in payment of debts ; pass any bill of attainder, ex 
post facto law ; or law impairing the obligation of contracts , 
or grant any title of nobility. 

No State shall, without the consent of the Congress, lay any 
imposts or duties on imports or exports, except what may be 
absolutely necessary for executing its inspection laws: and 
the net produce of" all duties and imposts, laid by any State 
on imports or exports, shall be for the use of the Treasury of 
the United States; and all such laws shall be subject to the 
revision and control of the Congress. 

No State shall, without the consent of Congress, lay any 
duty of tonnage, keep troops, or ships of war in time of peace, 
enter into any agreement or compact with another State, or 
with a foreign power, or engage in war, unless actually in- 
vaded, or in such imminent danger as will not admit of delay. 



( 240 ) 
ARTICLE II. 

SECTION I. 

The executive power shall be vested in a President of the 
United States of America. He shall hold his office during 
the term of four years, and, together with the Vice President, 
chosen for the same term, be elected as follows : 

Each State shall appoint, in such manner as the Legislature 
thereof may direct, a number of electors equal to the whole 
number of Senators and Eepresentatives to which the State 
may be entitled in Congress; but no Senator or Eepresenta- 
tive, or person holding an office of trust or profit under the 
United States, shall be appointed an elector. 

The electors shall meet in their respective States, and vote 
by ballot for two persons, of whom one at least shall not be an 
inhabitant of the same State with themselves. And they shall 
make a list of all the persons voted for, and of the number of 
votes for each ; which list they shall sign and certify, and trans- 
mit sealed to the seat of the government of the United States, 
directed to the President of the Senate. The President of the 
Senate shall, in the presence of the Senate and House of Eep- 
resentatives, open all the certificates, and the votes shall then 
be counted. The person having the greatest number of votes 
shall be the President, if such number be a majority of the 
whole number of electors appointed; and if there be more 
then one who have such majority, and have an equal number 
of votes, then the House of Eepresentatives shall immediately 
choose, by ballot one of them for President ; and if no person 
have a majority, then from the five highest on the list the said 
House shall, in like manner, choose the President. But in 
choosing the President, the votes shall be taken by States, 
the representation from each State having one vote; a quo- 
rum for this purpose shall consist of a member or members 
from two-thirds of the States, and a majority of all the States 
ahall be necessary to a choice. In every case, after the choice 
of the President, the person having the greatest number of 
votes of the electors shall be the Vice-President. But if there 
should remain two or more who have equal votes the Senate 
shall choose from them by ballot the Vice-President. 

The Congress may determine the time of choosing the elec- 
tors, and the day on which they shall give their votes; which 
day shall be the same throughout the United States. 

No person except a natural born citizen, or a citizen of the 
United States, at the time of the adoption of this constitu- 
tion, shall be eligible to the office of President; neither shall 
any person be eligible to that office who shall not have attained 
to the age of thirty-five years, and been fourteen years a resi- 
dent within the United States. 



( 241 ) 

In case of the removal of the President from office, or of his 
death, resignation, or inahility to discharge the powers and 
duties of the said office, the same shall devolve on the Vice 
President, and the Congress may by law provide for the case of 
removal, death, resignation, or inability, both of the Presi- 
dent and Vice-President, declaring what officer shall then 
act as President, and such officer shall act accordingly, until 
the disability be removed or a President shall be elected. 

The President shall, at stated times, receive for his services, 
a compensation, which shall neither be increased or dimin- 
ished during the period for which he shall have been elected, 
and he shall not receive within that period any other 
emolument from the United States, or any of them. 

Before he enter on the execution of his office, he shall take 
the following oath or affirmation: ''/ do solemnly swear [or 
affirm] that I will faithfully execute the office of President 
of the United States, and will, to the best of my ability, pre- 
serve, protect, and defend the Constitution of the United 
States." 

SECTION II. 

The President shall be commander-in-chief of the army and 
navy of the United States, and of the militia of the several 
States, when called into the actual service of the United 
States ; he may require the opinion, in writing, of the princi- 
pal officer in each of the executive departments, upon any 
subject relating to the duties of their respective offi.cco; and 
he shall have power to grant reprieves and pardons for offences 
against the United States, except in cases of impeachment. 

He shall have power, by and with the advice and consent 
of the Senate, to make treaties, provided two-thirds of the 
Senators present concur; and he shall nominate, and by and 
with the advice and consent of the Senate, shall appoint am- 
bassadors, other public ministers and consuls, judges of the 
supreme court, and all other officers of the United States, 
whose appointments are not herein otherwise provided for, 
and which shall be established by law : But the Congress may 
by law vest the appointment of such inferior officers as they 
think proper, in the President alone, in the courts of law, or 
in the heads of departments. 

The President shall have power to fill up all vacancies that 
may happen during the recess of the Senate, by granting 
commissions which shall expire at the end of their next ses- 
sion. 

SECTION III. 

He shall from time to time give to the Congress informa- 
tion of the state of the Union, and recommend to their con- 



( 242 ) 

sideration such measures as he shall judge necessary and ex- 
pedient; he may, on extraordinary occasions, conyene both 
Houses, or either of them, and, in case of disagreement be- 
tween them, with respect to the time of adjournment, he may 
adjourn them to such time as he shall think proper; he shall 
receive ambassadors and other public ministers ; he shall take 
care that the laws be faithfully executed, and shall commis- 
sion all the officers of the United States. 

SECTION IV. 

The President, Vice-President and all civil officers of the 
United States, shall be removed from office on impeachment 
for, and conviction of, treason, bribery, or other high crimes 
and misdemeanors. 

ARTICLE III. 

SECTION I. 

The judicial power of the United States shall be vested in 
one Supreme Court, and in such inferior courts as the Con- 
gress may from time to time ordain and establish. The judges, 
both of the supreme and inferior courts, shall hold their offices 
during good behavior, and shall, at stated times, receive for 
their services, a compensation, which shall not be diminished 
during their continuance in office. 

SECTION II. 

The judicial power sliall extend to all cases 
ill law and equity, arising under this consti- 
tution, tlie la\^ s of the United States, and the 
treaties made, or ^viiicii shall be made, under 
their authority ; to all cases affecting ambassa- 
dors, other public ministers, and consuls; to all cases of 

admiralty and maritime jurisdiction; to controversies 

to which the United States shall be a party; to contro- 
versies between two or more States ; between a State and 

citizens of another State; between citizens of different 

States; between citizens of the same State, claiming 

lands under grants of different States, and between a State or 
the citizens thereof, and foreign States, citizens or subjects. 

In all cases affecting ambassadors, other public ministers 
and consuls, and those in which a State shall be a party, the 
supreme court shall have original jurisdiction. In all the 
other cases before mentioned, the supreme court shall have 
appellate jurisdiction, both as to law and fact, with such ex- 
ceptions, and under such regulations, as the Congress shall 
make. 

The trial of all crimes, except in cases of impeachment, 
shall be by jury; and such trial shall be held in the State 



( 243 ) 

where the said crimes shall have been committed; but when 
not committed within any State, the trial shall be at such 
place or places as the Congress may by law have directed. 

SECTION III. 

Treason against the United States, shall consist only in 
levying war against them, or in adhering to their enemies, 
giving them aid and comfort. No person shall be convicted 
of treason, unless on the testimony of two witnesses to the 
same overt act, or on confession in open court. 

The Congress shall have power to declare the punishment 
of treason, but no attainder of treason shall work corruption of 
blood, or forfeiture except during the life of the person at- 
tainted. 

AETICLE TV. 

SECTION I. 

Full faith and credit shall be given in each State to the 
public acts, records, and judicial proceedings of every other 
State. And the Congress may by general laws prescribe the 
manner in which such acts, records, and proceedings shall be 
proved, and the effect thereof. 

SECTION II. 

The citizens of each State shall be entitled to all the privi- 
leges and immunities of citizens in the several States. 

A person charged in any State with treason, felony, or other 
crime, who shall flee from justice, and be found in another 
State, shall on demand of the executive authority of the State 
from which he fled, be delivered up, to be removed to the 
State having jurisdiction of the crime. 

No person held to service or labor in one State under the 
laws thereof, escaping into another, shall, in consequence of 
any law or regulation therein, be discharged from such service 
or labor, but shall be delivered up on claim of the party to 
whom such service or labor may be due. 

SECTION III. 

New States may be admitted by the Congress into this 
Union [within the limits of America] ; but no 

new State shall be formed or erected within the jurisdiction 
of any other State ; nor any State be formed by the junction 
of two or more States, or parts of States, without the consent 
of the Legislature of the States concerned as well as of the- 
Congress. 

The Congress shall have power to dispose of and make all 
needful rules and regulations respecting the territory or other 
property belonging to the United States; and nothing in 
this constitution shall be so construed as to prejudice any 
claims of the United States, or of any particular State. 



( 244 ) 

SECTION IV. 

The United States shall guaranty to every State in this 
Union a republican form of government, and shall protect 
each of them against invasion; and on application of the leg- 
islature, or of the executive (when the legislature cannot be 
convened) against domestic violence. 

AETICLE V. 

The Congress, whenever two-thirds of both Houses shall 
deem it necessary, shall propose amendments to tliis consti- 
tution, or, on the application of the legislatures of two-thirds 
of the several States, shall call a convention for proposing 
amendments, which in either case, shall be valid to all intents 
and purposes, as part of this: constitution, when ratified by the 
legislatures of three-fourths of the several States, or by con- 
ventions in three-fourths thereof, as the one or the other mode 
of ratification may be proposed by the Congress; provided, 
that no amendment, which may be made prior to the year one 
thousand eight hundred and eight, shall in any manner affect 
the first and fourth clauses in the ninth section of the first 
article; and that no State, without its consent, shall be de- 
prived of its equal suffrage in the Senate. 

AETICLE YI. 

All debts contracted and engagements entered into, before 
the adoption of this constitution, shall be as valid against the 
United States under this constitution, as under the confedera- 
tion. 

This constitution, and the laws of the United States which 
shall be made in pursuance thereof; and all treaties made, 
or which shall be made, under the authority of the United 
States, shall be the supreme law of the land; and the judges 
in every state shall be bound thereby, any thing in the con- 
stitution or laws of any State to the contrary notwithstand- 
ing- 

The Senators and Eepresentatives before mentioned, and 
the members of the several State legislatures, and all execu- 
tive and judicial officers, both of the United States and of 
the several States shall be bound, by oath or affirmation, to 
support this constitution: but no religious test shall ever be 
required as a qualification to any office or public trust under 
the United States. 

AETICLE VII. 

The ratification of the conventions of nine states, shall be 
sufficient for the establishment of this constitution between 
the States so ratifying the same. 



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